author: MONACO, J.

text:
    LAND TITLE OF CENTRAL FLORIDA, LLC, Appellant, v. Arely JIMENEZ, et al., Appellee.
    No. 5D05-3958.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 2006.

      Teresa N. Phillips, David J. Kohs, and Eric Boughman of Pohl & Short, P.A., Winter Park, for Appellant.
    Ronald M. Hand, of Ronald M. Hand, P.A., Kissimmee, for Appellee.
   MONACO, J.

By this appeal the appellant, Land Title of Central Florida, L.L.C., contests the various components of the damages awarded to the appellee, Arely Jimenez, by the trial court. The damages arise out of the negligent preparation by Land Title as closing agent of a deed running to Ms. Jimenez containing a property description for the wrong piece of property. We affirm in all respects save two. First, we conclude that the damages for a mineral rights reservation that encumbered the property, but which was not discovered by Ms. Jimenez until after a properly prepared deed was executed and delivered to her, should not have been awarded. Second, we can find no basis for an award of attorneys’ fees.

The underlying facts are not contested. Ms. Jimenez and the sellers executed an agreement for the sale and purchase of a home and acreage listed as 6050 Hickory Tree Road in St. Cloud, Florida. No legal description was provided in the contract. Land Title was employed to prepare the closing documents, including a warranty deed and mortgage encumbering the property. Unfortunately, Land Title prepared a deed and a mortgage covering a different piece of property that was also owned by the sellers.

About three months after the closing Land Title delivered copies of the closing documents to Ms. Jimenez, and she made application for a homestead exemption on the property that she thought she had purchased. When she applied for the exemption, she was advised that the property was not yet in her name. In addition, when she tried to refinance her mortgage at a lower rate, she had to abandon the effort because she did not own the property-

Ms. Jimenez contacted Land Title and was told that the matter would be corrected expeditiously. It was not, and Ms. Jimenez eventually hired an attorney. After making additional unsuccessful demands to fix the problem, she brought suit. In fact, it took Land Title about two years to finally correct its errors. When it did so, Ms. Jimenez discovered that the property that she had purchased was subject to a mineral rights reservation. She sold the property during the pendency of the suit for a substantial profit, but in her view was compelled to reduce the sale price by $5,000 because of the reservation. In addition, she spent $550 for an attorney to handle that matter.

The parties proceeded to trial, Ms. Jimenez prevailed, and she was awarded damages in accordance with a number of her claims. Although we find no error in the award of most of the damages, we conclude under the facts of this case that the award of damages for the mineral rights reservation and for the cost of the attorney hired to deal with it was improper.

While the complaint filed by Ms. Jimenez sought general damages, it did not seek special damages resulting from the mineral rights reservation. If special damages are claimed, they must be “specifically stated” in the appropriate pleading. See Fla. R. Civ. P. 1.120(g). A portion of the Authors’ Comment to rule 1.120 states in this connection:

The circumstances justifying a claim for special damages should be disclosed in the pleadings. Such special damages must be specifically pleaded, if evidence concerning them is to be admissible.

See also Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358 (1936). Special damages are those that do not necessarily result from the wrong or breach of contract complained of, or which the law does not imply as a result of that injury, even though they might naturally and proximately result from the injury. See Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So.2d 767, 770 (Fla. 3d DCA 1968); see also 17 Fla. Jur.2d Damages § 8. More succinctly, special damages are damages that do not follow by implication of law merely upon proof of the breach. See DeMello v. Buckman, 916 So.2d 882 (Fla. 4th DCA 2005). General damages, on the other hand, are damages that the law presumes actually and necessarily result from the alleged wrong or breach. See Augustine v. S. Bell Tel. & Tel. Co., 91 So.2d 320, 323 (Fla.1956).

The purpose of the special damages rule is to prevent surprise at trial. See Fla. R. Civ. P. 1.120(g); Bialkowicz, 215 So.2d at 770. Special damages must, therefore, be particularly specified in a complaint in order to apprise the opposing party of the nature of the special damages claimed. If special damages are not specifically pled, then evidence of them is inadmissible. See Precision Tune Auto Care, Inc. v. Radcliffe, 804 So.2d 1287 (Fla. 4th DCA 2002). More importantly for purposes of the present case, damages may not be awarded on a claim that is not contained within the pleadings. See De-Mello; Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So.2d 1231 (Fla. 1st DCA 1995).

Here, Land Title undertook to supervise the closing, and was obligated to do so in a reasonably prudent manner. See Fla. S. Abstract & Title Co. v. Bjellos, 346 So.2d 635 (Fla. 2d DCA 1977). General damages would in this instance stem from either actual knowledge by Land Title that the type of harm complained of has resulted in the past from similar negligent conduct, or the harm has so frequently resulted from the same type of negligence that “in a field of human experience” the same type of result could be expected again. In other words, a foreseeable consequence is one that a prudent person would anticipate as likely to result from an act. Foreseeable consequences, however, are not “what might possibly occur.” See Dolan Title & Guar. Corp. v. Hartford Accident & Indem. Co., 395 So.2d 296, 299 (Fla. 5th DCA 1981). Nor is the mere knowledge by the defense of the claimed damages sufficient to excuse the pleading requirement. Lack of surprise will not authorize the admission of evidence of special damages that have not been specifically pleaded. See, e.g., Alderman v. Murphy, 486 So.2d 1334, 1338 (Fla. 4th DCA 1986).

In considering the nature of special damages it might be helpful to explore the injuries claimed in several cases where the subject was discussed. In Alderman, for example, the loss of a farm by the plaintiff resulting from the loss of livestock because of the obstruction of water to the farm was determined to fall within the special damages category. In Bialkowicz, the appellate court held that the plaintiff, who was seeking damages because he purportedly suffered physical inconvenience and bodily injury (a heart attack) as a result of pile driving and construction by the defendant on an adjacent property, was seeking special damages that were required to be pled. Likewise, in Rost v. Bowling, 861 So.2d 1246 (Fla. 2d DCA 2003), our sister court in the Second District pointed out that in wrongful eviction actions plaintiffs have been permitted to recover as special damages such expenses as the cost of improvements to the leased property or the cost of renting substitute property.

Here, Land Title negligently drafted closing documents containing an incorrect legal description. The fact that the title to the land that should have been described in the deed contained a mineral rights reservation that might necessitate a cure is not something that the law would reasonably expect to result from the negligence. That is, the damages do not follow by implication of law simply by proof of the wrong. These losses are special and required that the opposing party be apprised of the damage claim in the pleadings. Thus, it was error for the trial court to award such damages.

The second error that we find concerns an award of attorneys’ fees against Land Title and in favor of Ms. Jimenez. The claim for attorneys’ fees for the entire claim was pled generally, rather than specifically, and we are unable to discern the basis for the award. There appears to be no statute, contract or other applicable doctrine that gives Ms. Jimenez the right to recover her attorneys’ fees. Accordingly, we reverse the award in that regard.

Accordingly, we affirm the final judgment except with respect to the award of damages for the mineral rights reservation and except for the award of attorneys’ fees. We remand for entry of an order consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . Although not required because of our ruling, we have serious doubts that the claimed damages for the mineral rights reservation could have been recovered at all in the present case. When Ms. Jimenez finally got a correct deed with accurate title work and the reservation was revealed, she was in the same position to rescind the transaction vis-a-vis the sellers as she would have been if the deed and title work had been initially correct. That is, the problem presented by the mineral rights reservation was not caused by Land Title. She did perhaps lose an opportunity to attempt to renegotiate the purchase price from the original seller, but whether she would have been successful in that regard is purely speculative. She chose not to rescind, of course, because she made a substantial profit on the resale of the property. That she reduced the purchase price in order to accommodate her buyer's demand does not necessarily reflect any damages that she might have suffered as a result of the original negligently prepared documents.


source: Caselaw Access Project

author: WEBSTER, J. HAWKES, J.,

license: Public Domain

text:
    Linda Lou HALE, Appellant, v. SHEAR EXPRESS, INC., d/b/a Hair Express, Appellee.
    No. 1D05-3636.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.

      Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    David K. Beach of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellee.
   WEBSTER, J.

This workers’ compensation case is before us on a Motion for Review of Appellate Attorneys’ Fees filed pursuant to Florida Rule of Appellate Procedure 9.400(c). Appellant’s appellate attorneys argue that the fee awarded by the judge of compensation claims was inadequate. Because no competent substantial evidence was presented to the judge of compensation claims disputing the reasonableness of the fee requested by appellant’s appellate attorneys, we reverse and remand with directions that the judge award the amount requested.

In Hale v. Shear Express, Inc., 932 So.2d 514 (Fla. 1st DCA 2006), we reversed an order of the judge of compensation claims enforcing a settlement agreement. By unpublished order we also granted appellant’s motion for attorneys’ fees, and relinquished jurisdiction to the judge of compensation claims to determine the amount of fees to which appellants’ attorneys were entitled. In that order, we directed that both the petition filed before the judge of compensation claims seeking fees and any response thereto be verified.

The verified petition filed before the judge of compensation claims by appellant’s appellate attorneys claimed that 71.46 hours had been devoted to -the appeal, attaching time records and other appropriate documents, and opined that, based upon fees customarily charged for appellate services by attorneys with comparable skill and reputation in the relevant community, an appropriate fee for services performed in the appeal would be $20,000.00. The employer and servicing agent filed an untimely and unverified response to the petition. At the start of the hearing before the judge of compensation claims, appellant’s attorneys objected to the response filed by the employer and servicing agent, pointing out that it was both untimely and unverified. The judge nevertheless accepted the untimely and unverified response. Appellant’s appellate attorneys presented live sworn testimony at the hearing from one of the attorneys and from an expert. Their testimony supported the $20,000.00 fee requested in the verified petition. The employer and servicing agent presented neither testimony nor other evidence. In her Attorney Fee Order, the judge of compensation claims made a number of findings and, based on those findings, awarded appellant’s appellate attorneys only $11,846.25, rather than the $20,000.00 they had requested.

The employer and servicing agent have filed before us a Response to Motion for Additional Attorney’s Fees in which, in addition to arguing the merits of the motion, they contend that the “motion should be immediately rejected on procedural grounds” because it was not timely filed. Because that Response was not timely served, we strike it. See Fla. R.App. P. 9.300(a) (requiring that a response to a motion be served within ten days of service of the motion). However, for the benefit of the employer and servicing agent, we note that the motion was timely filed in this court. Florida Rule of Appellate Procedure 9.400(c) requires that such a motion be filed within 30 days of rendition of the order sought to be reviewed. The Attorney Fee Order was rendered on September 29, 2006. Therefore, the motion had to be 'filed here by October 29, 2006. However, because October 29th fell on a Sunday, the last day for filing became Monday, October 30th, the day on which the motion was filed. See Fla. R.App. P. 9.420(e).

On the merits, it is apparent from the record that none of the findings made by the judge of compensation claims is supported by competent substantial evidence. Instead, they appear to have been based on the judge’s subjective belief and personal experience. This was error. See Sanchez v. Woemer Mgmt., Inc., 867 So.2d 1173, 1174-75 (Fla. 1st DCA 2004) (reversing reductions in hours identified by claimant’s attorneys as reasonably expended because the reductions were not supported by competent substantial evidence but, instead, “appealed] to rest entirely upon the JCC’s subjective belief and personal experience of what to him seemed reasonable”). Accord Marshall v. City of Miami, 920 So.2d 107, 108 (Fla. 1st DCA 2006); Morris v. Dollar Tree Store, 869 So.2d 704, 706-07 (Fla. 1st DCA 2004); Smith v. U.S. Sugar Corp., 624 So.2d 315, 319 (Fla. 1st DCA 1993). In this regard, we reiterate that unsworn responses and arguments of counsel are not evidence upon which a judge of compensation claims may rely when determining the amount of a reasonable fee. See, e.g., Smyth v. K-Mart Corp., 905 So.2d 921, 921 (Fla. 1st DCA 2005); Sanchez, 867 So.2d at 1175.

Because no competent substantial evidence was presented disputing the reasonableness of the fee requested by appellant’s appellate attorneys, we grant the Motion for Review of Appellate Attorneys’ Fees. That portion of the Attorney Fee Order awarding only $11,846.25 is reversed, and the case is remanded to the judge of compensation claims with directions that she enter an order awarding appellant’s appellate attorneys the $20,000.00 they requested.

REVERSED and REMANDED, with directions.

KAHN, J., concurs.

HAWKES, J., dissents with written opinion.

HAWKES, J.,

dissenting,

I must respectfully dissent. The majority has chosen to reject the factual findings of the JCC and engage in its own appellate fact finding. Such an endeavor is specifically prohibited by law. See Dollar General Corp. v. MacDonald, 928 So.2d 464, 466 (Fla. 1st DCA 2006) (holding “a JCC’s conclusion as to factual issues will be affirmed if the record provides competent, substantial evidence to support it”).

This Court has often reminded the Bar that the standard of review in workers’ compensation cases is whether competent substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below. See Mercy Hosp. v. Holmes, 679 So.2d 860, 860 (Fla. 1st DCA 1996) (“Once again we remind counsel of the basic premise that the standard of review in worker’s compensation cases is whether competent substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below.”); see also GTE v. Miller, 642 So.2d 1188, 1190 (Fla. 1st DCA 1994); Holiday Foliage v. Anderson, 642 So.2d 94, 97 (Fla. 1st DCA 1994); Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). The JCC’s decision to award attorney’s fees for 60.75 hours was supported by competent substantial evidence presented below and should be affirmed on that basis. The fact that evidence in the record could have been relied upon in awarding an additional 10.71 hours in billable time is irrelevant to our review on appeal.

Moreover, the majority has ignored this Court’s previous recognition that “[t]he JCC, as the finder of fact, has the prerogative of disbelieving a witness.” Strickler v. Florida Power Corp., 667 So.2d 239, 240 (Fla. 1st DCA 1995). In specifically recognizing this axiomatic function of being the fact finder, this Court has further stated that “[t]he JCC is free to reject, in whole or in part, even uncontroverted testimony which the JCC disbelieves.” Id. at 240; see also Storage Technology Corp. v. Philbrook, 448 So.2d 42 (Fla. 1st DCA 1984); Ullman v. City of Tampa Parks Department, 625 So.2d 868 (Fla. 1st DCA 1993).

In this action for attorney’s fees, the .burden of persuasion rested with the claimant. Therefore, it was claimant’s responsibility to not only proffer evidence supporting the conclusion that the number of hours requested was reasonable, .but to convince the JCC that the number of hours requested was reasonable. Here, the JCC was free to accept the testimony of claimant’s attorney and expert as to the reasonableness of some of the hours claimed, but simultaneously reject the allegation of reasonableness as to the balance of the hours requested. Accordingly, the JCC’s decision to not award attorney’s fees for the hours it did not find to be reasonable was appropriate.

Finally, the majority’s reliance upon Sanchez v. Woerner Mgm., Inc., 867 So.2d 1173 (Fla. 1st DCA 2004), is misplaced. In Sanchez, this Court specifically noted that the E/C made no effort to cross-examine regarding the reasonableness of the fee requested. Such was not the case here. The E/C conducted a complete cross-examination of both claimant’s attorney and expert. The E/C’s cross-examination was successful in demonstrating: 1) that claimant’s expert had not spent much time -reviewing the files before reaching her conclusion as to the reasonableness of the fee requested, 2) that claimant’s expert based her reasonableness determination, in large part, upon her subjective belief in the integrity of claimant’s counsel, and 3) that the facts of the underlying case may not have been as complex as claimant’s attorney alleges — thus calling into question some of the hours claimant claimed for time spent preparing the appellate briefs “Statement of the Case and Facts.” The existence of a successful cross-examination clearly distinguishes this case from Sanchez. For this reason, as well as the reasons discussed above, the majority’s reliance upon Sanchez is inappropriate.

Because the JCC’s order is supported by competent substantial evidence and the JCC is free to reject, in whole or in part, even uncontroverted testimony from any witness which the JCC disbelieves, I would affirm the JCC’s order. Due to the majority’s decision to ignore these principles of law, I am compelled to respectfully dissent.


author: PER CURIAM.

text:
    Joseph B. FERGUSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3587.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.
    Joseph B. Ferguson, pro se, Petitioner.
    Charlie Crist, Attorney General, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In light of the circuit court’s recent actions, we determine that the granting of mandamus relief is not warranted. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). However, we strongly encourage the circuit court to consider and dispose of the pending motion promptly.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


text:
    David Lee MOORE, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-5224.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.
    David Lee Moore, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee; Rosa H. Carson, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s October 10, 2006, order on jurisdiction, this appeal is hereby dismissed as untimely. See Fla. R.App. P. 9.110(b). All pending motions are denied as moot.

ALLEN, WEBSTER,■ and THOMAS, JJ., concur.


author: WHATLEY, Judge.

text:
    Richard McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2996.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.
   WHATLEY, Judge.

Richard McDuffie appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the postconviction court’s summary denial of McDuffie’s claim that his forty-five-year prison sentence for second-degree murder with a firearm was illegal and remand for further proceedings.

On January 11, 1995, in circuit court case 93-887, McDuffie pleaded no contest pursuant to a stipulated upward departure negotiated plea agreement to the lesser offense of second-degree murder with a firearm, a violation of sections 782.04(2) and 775.087, Florida Statutes (1991). On May 11, 1995, the trial court sentenced McDuffie to forty-five years’ prison. This court affirmed the judgment and sentence. See McDuffie v. State, 681 So.2d 285 (Fla. 2d DCA1996) (table decision).

In considering the rule 3.800(a) claim, the postconviction court found that McDuffie pleaded no contest to second-degree murder, a violation of. section 782.04, Florida Statutes (1991), a felony of the first-degree punishable by imprisonment for a term of years not exceeding life or as provided in section 775.082. Therefore, the postconviction court found that McDuffie’s sole reliance on section 775.082 was misplaced as section 782.04 specifically provided that second-degree murder is punishable by imprisonment for a term of years not exceeding life.

However, McDuffie pleaded nolo conten-dere to second-degree murder with a firearm, a violation of sections 782.04(2) and 775.087, Florida Statutes (1991). Pursuant to section 782.04(2), second-degree murder is “a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.088, or s. 775.084.” Section 775.087, Florida Statutes (1991), states:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.

Therefore, McDuffie’s second-degree murder conviction required reclassification to a life felony due to McDuffie’s use of a firearm.

Section 775.082(3)(a), Florida Statutes (1991), states that a person who has been convicted of a life felony committed on or after October 1, 1983, may be punished by “a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.” Therefore, McDuffie’s forty-five-year prison sentence exceeds the forty-year statutory maximum under section 775.082(3)(a). “A trial court cannot impose an illegal sentence even pursuant to a plea bargain.” Ferguson v. State, 804 So.2d 411, 412 (Fla. 4th DCA 2001). Consequently, McDuffie’s forty-five-year prison sentence is illegal and must be reversed. See Ramos v. State, 931 So.2d 1023 (Fla. 3d DCA 2006) (holding that fifty-year sentence for life felony was illegal where section 775.082(3)(a), Florida Statutes (1989), proscribed punishment by life imprisonment or for a term not exceeding forty years); Miranda v. State, 832 So.2d 937, 941 (Fla. 3d DCA 2002) (holding that “for a 1993 crime date, the offense of second-degree murder with a weapon is classified as a life felony” with a maximum penalty of “life imprisonment or a term of years not exceeding forty” and, therefore, the fifty-year-prison sentence exceeds the legal maximum); Ferguson, 804 So.2d at 412 (reversing forty-five-year sentence for second-degree murder, a first-degree felony that became a life felony due to the possession of a firearm, which could be punished by a term not exceeding forty years); Wright v. State, 600 So.2d 11, 12 (Fla. 4th DCA 1992) (reversing sixty-year sentences for two first-degree felonies that became life felonies due to the possession of a firearm, which could be punished by a term not exceeding forty years).

McDuffie’s forty-five-year prison sentence for second-degree murder with a firearm is illegal. See Ferguson, 804 So.2d at 412. However, McDuffie’s forty-five-year prison sentence was the result of a stipulated upward departure pursuant to a negotiated plea agreement. Therefore, McDuffie may be resentenced within the statutory maximum of forty years only with the State’s agreement. See Lang v. State, 931 So.2d 922, 922 (Fla. 2d DCA 2005). If the State does not agree to such a sentence, McDuffie must be allowed to withdraw his plea. See id.

The court notes that the trial court also failed to impose the three-year mandatory minimum pursuant to section 775.087(2)(a)(l) when McDuffie was originally sentenced. Whether such a mandatory minimum is required to be imposed on remand is contingent on how the State elects to proceed. Therefore, on remand, the postconviction court shall impose any applicable mandatory minimum pursuant to section 775.087.

Reversed and remanded with instructions.

SALCINES and VILLANTI, JJ., Concur.


author: VILLANTI, Judge.

text:
    Ulyssess SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2514.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.
   VILLANTI, Judge.

Ulyssess Smith appeals the postconviction court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the postconviction court’s summary denial of claim one and affirm, without comment, the postconviction court’s ruling on claims two and three.

In claim one, Smith alleged his attempted manslaughter conviction was erroneously listed and scored as a level 6 offense when it should have been listed and scored as a level 5 offense. The postconviction court denied this claim, finding that Smith’s attempted manslaughter conviction, a violation of sections 782.07(1) and 777.04(4)(a), Florida Statutes (1995), was properly listed and scored as a level six offense.

The State now concedes that Smith’s attempted manslaughter conviction should have been listed and scored as a level 5 offense. See Cruz v. State, 789 So.2d 441 (Fla. 2d DCA 2001). However, the State argues that Smith is not entitled to be resentenced because the sentence imposed would have been a legal sentence with the corrected scoresheet calculating the attempted manslaughter conviction at level 5.

“This district currently applies the ‘would have’ standard to determine if postconviction relief is available under rule 3.800(a).” Wilson v. State, 913 So.2d 1277, 1279 (Fla. 2d DCA 2005); see also Mathews v. State, 907 So.2d 1291 (Fla. 2d DCA 2005); Wilson v. State, 877 So.2d 27 (Fla. 2d DCA 2004). “Under this standard, the trial court must grant postconviction relief unless the record establishes that the sentence ‘would have’ been the same under a corrected scoresheet.” Wilson, 913 So.2d at 1279; see also Mathews, 907 So.2d at 1291-92. Based on the limited record before this court, there is no record evidence establishing that the same sentence “would have” been imposed under the corrected scoresheet.

Accordingly, we reverse the postconviction court’s denial of claim one and remand for the postconviction court to calculate a correct scoresheet and then to determine what, if any, relief is appropriate as a result of that scoresheet.

Reversed and remanded with instructions.

NORTHCUTT and KELLY, JJ., Concur.


text:
    Kervin JUSTE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-4376.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2007.
    Raymond M. Warren and Joseph C. Warren of Warren & Warren, P.A., Dayto-na Beach, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Kervin Juste, seeks a writ of habeas corpus to obtain pretrial release. Petitioner is charged with burglary of a dwelling with an assault or battery, a first-degree felony punishable by life, and two counts of false imprisonment. He has been detained without bond since his arrest on November 27, 2006. Petitioner filed a motion to set bond, and at the conclusion of the hearing the court denied the motion.

As the state did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, the trial court should have determined the proper conditions of pretrial release at the hearing on the motion to set bond. See Kelly v. State, 939 So.2d 1150 (Fla. 5th DCA 2006); Ho v. State, 929 So.2d 1155 (Fla. 5th DCA 2006); Nguyen v. State, 925 So.2d 435 (Fla. 5th DCA 2006).

Petitioner is charged with a first degree felony punishable by a term of years not exceeding life imprisonment. See § 810.02(2)(a), Fla. Stat. (2006). When a person is charged with a capital offense or an offense punishable by life imprisonment, it is the state’s burden, in order to foreclose bail as a matter of right, to present evidence beyond the indictment or information which shows that the proof of guilt is evident or the presumption is great. See generally State v. Arthur, 390 So.2d 717 (Fla.1980). The assistant state attorney at the hearing stated that petitioner was entitled to bond, and presented no evidence. We therefore grant the petition for writ of habeas corpus, and direct the trial court to conduct a pretrial release hearing pursuant to Florida Rule of Criminal Procedure 3.131, no later than three business days following the issuance of this opinion. This decision is without prejudice to the state to file a motion for pretrial detention, should it choose to do so.

PETITION GRANTED.

THOMPSON, SAWAYA and TORPY, JJ., concur.


text:
    Derrick CHARLESTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5691.
    District Court of Appeal of Florida, First District.
    Jan. 4, 2007.
    Derrick Charleston, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.


text:
    Edward VALE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3485.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 2007.
    Edward Vale, Madison, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Edward J. Vale appeals the denial of his petition for writ of habeas corpus filed in the circuit court of Brevard County. When a petitioner, such as Vale, attacks the validity of the convictidn by raising issues relating to the trial, or to the propriety of a plea, jurisdiction for habeas proceedings rests with the triál court that imposed the sentence and rendered the judgment of conviction. Collins v. State, 859 So.2d 1244, 1245-46 (Fla. 5th DCA 2008). As Vale’s petition for writ of habe-as corpus attacked his Seminole County conviction, his habeas proceeding should have been filed with that court. Accordingly, we affirm the dismissal of Vale’s habeas corpus petition without prejudice to refile in Seminole County.

AFFIRMED.

THOMPSON, ORFINGER and TORPY, JJ., concur.


text:
    Juan Leal ESQUIVEL, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D05-0644.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.

      Juan Leal Esquivel, pro se, Appellant.
    Charlie Crist, Attorney General, and Wendy Benner-Léon, Assistant Attorney General; Rosa Carson, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Juan Leal Esquivel appeals from an order dismissing his petition for writ of mandamus because he failed to pay a partial filing fee of $6.00 to the circuit court. We reverse and remand with instructions to the lower court to reevaluate Esquivel’s ability to pay, based on an updated record of his inmate bank account.

Esquivel initially filed his petition for writ of mandamus in this court on May 14, 2002, seeking to require the Department of Corrections to permit visits from his minor sons. We issued a certificate of indigency and transferred the case to the circuit court. On September 26, 2002, the lower court dismissed the case because Esquivel had not filed a document the court considered necessary in order to determine whether Esquivel was indigent. Esquivel appealed and this court reversed, stating that it had previously issued a certificate of indigency in this case, and because there was no showing that Esquivel’s status as an indigent had changed, dismissal of the petition was unwarranted. We remanded with directions to the circuit court to reconsider the question of Esquivel’s indigency. Esquivel v. Fla. Dep’t of Corr., 866 So.2d 156 (Fla. 1st DCA 2004).

On March 12, 2004, the trial court issued an order determining that Esquivel was indigent, but that he was able to pay part of his costs and fees, and directed him to make an initial prepayment of $6.00 within 30 days of the order or the case would be dismissed. Esquivel petitioned this court for writ of certiorari, claiming he could not pay, and attached a record of his inmate account showing a zero balance since November 2003.- This court denied the petition without comment on November 3, 2004. Esquivel v. Fla. Dep’t of Corr., 887 So.2d 331 (Fla. 1st DCA 2004).

On January 10, 2005, the trial court dismissed Esquivel’s petition for writ of mandamus, because Esquivel had never made the $6.00 prepayment. Esquivel claims on appeal that his prison inmate account shows that he has no ability to pay even this nominal amount.

When Esquivel first alleged his indigen-cy, he submitted documents in June 2002, showing that he received as much as $40 a month from his family. In March 2004, the lower court concluded that Esquivel was capable of making a $6.00 partial payment, based upon the record of his inmate account filed 21 months earlier. Relying on information that was two and one-half years old, the circuit court dismissed the petition.

When an inmate is required to pay part of the costs and fees related to litigation, section 57.085(4), Florida Statutes (2004), provides: “The initial partial payment must total at least 20 percent of the average monthly balance of the prisoner’s trust account for the preceding 6 months or for the length of the prisoner’s incarceration, whichever period is shorter.” (Emphasis added.) Subsection (8) requires:

In any judicial proceeding in which a certificate of indigence has been issued to a' prisoner, the court may at any time dismiss the prisoner’s action, in whole or in part, upon a finding that:
(c) The prisoner failed to pay court costs and fees under this section despite having the ability to pay[.]

(Emphasis added.) Although neither provision expressly requires a court to request an updated account record when there has been a long lapse of time since the inmate initially applied to the court for indigent status, we conclude from a comparison of these provisions that the basis for a partial payment or for dismissal must be found in the six-month period preceding the court’s determination, rather than the six months that had preceded the 'initial filing in the court, which in this case was 21 months earlier.

REVERSED and REMANDED for further proceedings.

DAVIS and BENTON, JJ., ERVIN, III, RICHARD W., Senior Judge, concur.

      . Appellee’s only argument asserted against Esquivel's appeal is that he failed to raise this issue in the lower court. We choose to consider the issue pursuant to the rule of lenity. See Cambrick v. State, 593 So.2d 613 (Fla. 2d DCA 1992) (observing that the pleadings of pro se inmates should be viewed with leniency).


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. K.R., Father of K.R., a Child, Appellee.
    No. 5D06-1901.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 2007.

      Charles D. Peters, Orlando, for Appellant.
    No Appearance for Appellee.
   MONACO, J.

The Department of Children and Family Services challengés an order of the trial court requiring the Department to pay for tri-weekly drug tests of K.R., a father who was attempting to regain custody of his daughter. Although the Department filed a notice of appeal in this case, we are unable to discern on what basis we have appellate jurisdiction. We do, however, exercise our authority under Rule 9.040(c), Florida Rules of Appellate Procedure, to consider this case on the basis of our certiorari jurisdiction. Because we conclude that the order in question violates the separation of powers doctrine, and thus departed from the essential requirements of law, we grant certiorari relief. See Dep’t of Corr. v. Harrison, 896 So.2d 868 (Fla. 5th DCA 2005); Dep’t of Corr. v. Grubbs, 884 So.2d 1147 (Fla. 2d DCA 2004).

As part of a case plan developed to accommodate a reunification between KR. and his child, K.R. agreed to submit to random drug tests. At a status hearing the Department objected to reunification because, among other reasons, K.R. was unable on three occasions to give a urine sample for random drug tests that were performed at his home. The trial court suggested that K.R. be tested three times a week for thirty days, and indicated that if K.R. tested negative on all tests, he would be allowed weekend visitation with his daughter. Although drug tests were offered free of charge if the subject came to the courthouse for testing, the trial court did not want K.R. to miss work. Instead, the court ordered the Department, through its contract agency, to provide home testing for K.R. without charge, despite the fact that the Department, through its agent, genérally charges for at-home testing. Although the Department objected and sought rehearing, the trial court declined to change its ruling. The Department then “appealed.”

Article II, § 3 of the Florida Constitution reads as follows:

Branches of government. — The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

The courts of this state have frequently held that an order of a trial court compelling a governmental department or agency to pay for a service or to incur another expense to the benefit of a private party “interferes with both legislative discretion in determining the funds required of an agency and executive discretion in spending those appropriated funds, in derogation of the doctrine of separation of powers.” Dep’t of Juvenile Justice v. C.M., 704 So.2d 1123, 1125 (Fla. 4th DCA 1998); see also Grubbs; Dep’t of Health and Rehab. Servs. v. V.L., 583 So.2d 765, 767 (Fla. 5th DCA 1991) (“it is not the role of the judiciary to revise legislative appropriations or to interfere with an agency’s discretionary budgetary decisions”). The trial court’s order in the present case falls squarely within that proscription. The judicial branch may not either interfere with the legislative branch by requiring funds to be spent by an executive agency in a manner not authorized by statute, nor interfere with an executive agency’s discretion in the spending of appropriated funds. See Harrison, 896 So.2d at 870. We, therefore, grant certiorari relief with respect to the order directing the Department to pay for the at-home drug testing of K.R.

WRIT OF CERTIORARI GRANTED.

THOMPSON and PALMER, JJ., concur.


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. Joseph Wesley WATT, Appellee.
    No. 5D06-1058.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 2007.
    Bill McCollum, Jr., Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellant.
    Keith F. Szachacz, Alan S. Diamond and Kepler B. Funk of Funk, Szachacz & Diamond, LLC, Melbourne, for Appellee.
   PALMER, J.

The State appeals the final order entered by the trial court granting Joseph Watt’s (defendant) motion to suppress. Concluding that the good faith exception to the exclusionary rule was applicable in this case, we reverse.

The State charged the defendant with committing several felony drug offenses. The defendant filed a pretrial motion to suppress, arguing that all evidence seized at the time of his arrest was obtained as the result of an illegal search of his residence. More specifically, the motion alleged that the evidence was obtained as the result of the execution of a faulty search warrant in that there was no probable cause to support the issuance of the warrant.

At the suppression hearing, the State argued alternatively that (1) probable cause existed to support the issuance of the instant search warrant, and (2) suppression was not warranted because the instant facts supported the application of the good faith exception to the exclusionary rule. . In reviewing the motion, the trial court properly relied solely on the affidavit authored by Agent Anthony Brannon of the Brevard County Sheriffs Office, which was attached to the search warrant application, to determine the issue of probable cause.

In his affidavit, Agent Brannon stated that he believed that the defendant’s home was being used in violation of chapter 893 of the Florida Statutes on a regular basis for the possession and sale of cocaine. The affidavit then set forth the following facts to establish grounds for the warrant.

First, the affidavit cited to the fact that, during the month of February 2005, the Brevard County Sheriffs Office special investigation unit received information from a confidential informant (Cl) in reference to large quantity cocaine sales by the defendant and a second man, Greg Simpson. The Cl advised the police that the defendant and Simpson would not allow persons to come to their residence to purchase cocaine, but instead, they would meet purchasers in different spots in the Brevard County area in order to effectuate the sales.

The affidavit further stated that, during the month of February 2005, Agent Bran-non received information from a Cl indicating that he had witnessed several cocaine transactions between Simpson and other people in the Brevard County area. Police surveillance identified Simpson as entering and exiting the defendant’s residence with the use of a key.

The affidavit stated that the police conducted a controlled buy of cocaine between Simpson and a Cl.. The Cl phoned Simpson on his cell phone requesting to buy some cocaine, and Simpson arranged to meet the Cl at the local Hess Station in Cocoa. At the time the phone conversation was taking place, the police were listening to the parties’ conversation as well as observing the defendant’s residence. A few minutes after the phone call ended, the police observed Simpson exit the defendant’s residence and enter a blue truck. They observed the truck travel to the local Hess Station where Simpson met the ,CI and engaged in the controlled buy. The police then observed Simpson leave the Hess station and return to the defendant’s residence.

The affidavit stated further that Agent Brannon met with a Cl for the purpose of arranging a second controlled buy with Simpson. The parties used the same protocol, with a ' phone call by the Cl to Simpson’s cell phone, a request by the Cl to buy cocaine, an arrangement to meet at the local Subway Shop to execute the buy, and police surveillance of the defendant’s home and the parties’ phone call.

The trial court .entered an order granting the defendant’s motion to suppress, specifically rejecting the State’s arguments that probable cause existed to support the search warrant and that the facts supported application of the good faith exception to the exclusionary rule. This appeal by the State timely followed the entry of the trial court’s suppression order.

Although the parties disagree over whether the facts set forth in Agent Bran-non’s affidavit were sufficient to establish probable cause for the search warrant, we need not reach that issue because we conclude that, even if probable cause did not exist, the good faith exception is applicable in this case.

In U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3430, 82 L.Ed.2d 677 (1984), the Supreme Court held that the exclusionary rule need not be applied to evidence obtained as the result of ári illegal search when the officer conducting the search acted in objectively reasonable reliance on the invalid warrant. In Montgomery v. State, 584 So.2d 65, 67 (Fla. 1st DCA 1991), the First District held that, unless “the warrant is based on an affidavit so lacking in indicia of probable cause as to render an official’s belief in its existence entirely unreasonable, Leon should be applied.”

In this case, an experienced trial judge reviewed Agent Brannon’s affidavit and determined that probable cause existed to justify the issuance of a search warrant. The police executed the search pursuant to the warrant issued by the judge. In order to reject the application of the good faith exception in this case, we would need to conclude that an objectively reasonable police officer would have a better understanding of the law of search and seizure and probable cause than did the trial judge who issued the warrant. We are not willing to do so.

No indication exists in the record that either the police officer or the trial judge was corrupt, dishonest, or acted in bad faith. Accordingly, this case is controlled by the principle we articulated in State v. Harris, 629 So.2d 983 (Fla. 5th DCA 1993):

The warrant was regular on its face and the affidavit upon which it was based was not so lacking in indicia of probable cause that the officer executing the warrant could not with reasonable objectivity rely in good faith on the magistrate’s probable cause determination and on .the technical sufficiency of the warrant.

Id. at 984. See also Pazos v. State, 654 So.2d 1000 (Fla. 4th DCA 1995) (holding that the good faith exception to exclusionary rule applied to allow for the admission of cocaine seized from defendant’s residence notwithstanding that the affidavit supporting the search warrant did not show probable cause that any law was then being violated in the dwelling; reliability of informant was demonstrated, there was controlled buy as well as prior drug dealings between informant and occupant of dwelling, officers had informant in sight constantly except while he was inside the dwelling, there was firm connection between contraband and the premises, there were no false statements or representations in the affidavit, and officers’ reliance on magistrate’s determination of probable cause was objectively reasonable).

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

      . Appellate jurisdiction is proper pursuant to rule 9.140(c) of the Florida Rules of Appellate Procedure.

      . In U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3430, 82 L.Bd.2d 677 (1984), the Supreme Court held that the exclusionary rule need not be applied to evidence obtained as the result of an illegal search when the officer conducting the search acted in objectively reasonable reliance on an invalid warrant.


text:
    Harold Bernard CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0520.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate and Philip W. Edwards, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Harold Bernard dark appeals a judgment and sentence, entered August 6, 1993, convicting him of attempted first degree murder and burglary of a dwelling with assault. Appellant argues before this court that his conviction for attempted first degree murder must be reversed because it may have been based upon a theory of attempted felony murder, a charge rendered invalid by the Florida Supreme Court’s decision in State v. Gray, 654 So.2d 552 (Fla.1995).

This direct appeal arises from proceéd-ings which began in 1993. Appellant and the victim, Ms. Patricia Ann Lee, had been involved in a long-term relationship which deteriorated in March 1993. Ms. Lee testified at trial that, even after their relationship ended, appellant continued to pursue and harass her. In the early morning hours of March 29,1993, Ms. Lee awoke to find appellant in her apartment, sitting on her bed, leaning over her. She testified that appellant grabbed her and she felt something, presumably appellant’s knife, “go around [her] neck.” Appellant continued to grab her neck and squeeze, as though “trying to make it bleed” and then ran out of the house. Ms. Lee was treated at the University Medical Center for a severe stab wound to the left side of her neck. Fortunately, she survived the attack.

Appellant was charged by amended information on June 4, 1993, with one count of attempted premeditated murder, and one count of burglary with intent to commit assault. Nonetheless, at trial the State argued, and the trial court instructed, that the jury could find appellant guilty of attempted first degree murder on either one of two theories, first that appellant had the premeditated intent to kill Ms. Lee, or alternatively on the theory of felony murder committed while appellant was participating in the underlying burglary. The jury was also instructed on the lesser included crimes of attempted second degree murder, attempted third degree murder, attempted manslaughter, aggravated battery, aggravated assault, simple battery and simple assault. Ultimately, the jury returned a general verdict which pronounced appellant guilty of attempted first degree murder and burglary of a dwelling with assault.

Appellant filed a timely notice of appeal to this court. His judgments and sentences were affirmed without written opinion on May 23, 1995. Clark v. State, 654 So.2d 1166 (Fla. 1st DCA 1995). However, in the intervening time between appellant’s notice of appeal and this court’s disposition of the case, the Florida Supreme Court decided Gray, which announced that attempted felony murder was no longer a legally valid crime in Florida. The supreme court also noted that its decision must be applied “to all cases pending on direct review or not yet final.” Gray, 654 So.2d at 554. Counsel for appellant never raised the issue before this court.

Following his direct appeal, appellant pursued a series of post-conviction proceedings in this court. He also filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida, alleging that his conviction for a legally invalid crime violated due process, and further that he was denied the effective assistance of appellate counsel in his direct appeal. The petition was summarily denied. Appellant subsequently appealed the denial to the Eleventh Circuit Court of Appeal. In an opinion rendered July 2, 2003, the Eleventh Circuit vacated the district court’s order, “insofar as the court denied relief on Clark’s ineffective assistance of appellate counsel claim.” See Clark v. Crosby, 335 F.3d 1303, 1313 (11th Cir.2003). Accordingly, on remand, the District Court held an evidentiary hearing on the sole issue of whether appellant had received effective assistance from appellate counsel. On May 3, 2004, the District Court entered an order which held that Clark’s appellate counsel was deficient in failing to raise the potential issues presented by the supreme court’s decision in Gray, and ordered that appellant be released from custody unless he was afforded an opportunity for a second direct appeal. Appellant’s judgments and sentences are now before this court on appeal.

We agree with appellant that Gray requires this court to reverse appellant’s conviction for attempted first degree murder and we remand for a new trial. See Gray, 654 So.2d at 554 (holding, “we recede from the holding in Amlotte [v. State, 456 So.2d 448 (Fla.1984) ] that there is a crime of attempted felony murder in Florida. This decision must be applied to all cases pending on direct review or not yet final,” and approving the Third District Court’s reversal of Gray’s conviction for attempted first-degree felony murder); Bell v. State, 685 So.2d 1, 1 (Fla. 1st DCA 1996) (“Because appellant’s conviction on this charge may have been based on the now legally invalid theory of attempted felony murder, this jury’s verdict on this count must be set aside and the case remanded for retrial on the charge of attempted premeditated murder”). We do not address whether the trial court on remand may enter judgment against appellant on a lesser charge.

REVERSED and REMANDED with directions.

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


text:
    R.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2352.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.

      James T. Miller, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile delinquency áppeal, Appellant seeks review of an order adjudicating him delinquent and committing him to the Department of Juvenile Justice (DJJ) for high-risk residential placement. We write only to address Appellant’s complaint that the trial court failed to adequately specify its reasons for an upward departure from the recommendation by the DJJ. Because the trial court erred when it failed to reference the characteristics of a high-risk facility in relation to Appellant’s needs and failed to explain why its consideration of the evidence led to a different conclusion than that recommended by the DJJ, we must reverse.

Section 985.23(3)(c), Florida Statutes (2005), provides,

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

We have consistently held that when a trial court departs from the DJJ’s recommendation, it “must not only state its reasons for disregarding the recommended restrictiveness level on the record, the reasons must also be supported by a preponderance of the evidence and must make reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child.” C.C.B. v. State, 828 So.2d 429, 431 (Fla. 1st DCA 2002) (citing A. C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999)).

Here, although the DJJ’s official recommendation included a moderate risk placement, at the disposition hearing the DJJ representative acknowledged that Appellant is in fact a high-risk child and that its recommendation was changed to moderate risk only because Appellant could be placed more quickly in a moderate-risk facility. The trial court, however, disagreed with the DJJ’s moderate risk recommendation, finding that public safety concerns dictate that Appellant should be sentenced to a high-risk facility and remain securely detained.

While community protection is an appropriate reason to depart from the DJJ’s recommendation, the court must explain why a more restrictive program will protect the community. See A.C.N., 727 So.2d at 371 (explaining that the deviation was insufficient because the trial court did not state how the violent or serious nature of appellant’s offenses might establish the need for a more secure placement). The record here demonstrates that this is at least Appellant’s third encounter with the law, and all of the incidents involve firearms. Although the trial court implicitly stated that the public will be safer with Appellant placed in a high-risk facility because of his propensity to carry guns, this is not stated on the record.

Furthermore, the DJJ did consider Appellant’s previous encounters with the law in making its recommendation; therefore, the trial court is required to explain why it reached a different conclusion and how this placement will meet Appellant’s needs. See C.J. v. State, 923 So.2d 553 (Fla. 1st DCA 2006). The focus of the placement must be the needs of the child. N.B. v. State, 911 So.2d 833 (Fla. 1st DCA 2005). Because the trial court failed to reference the characteristics of the restrictiveness level in relation to Appellant’s needs, we reverse the trial court’s disposition order and remand for further proceedings.

Appellant’s second issue raised on appeal is affirmed without comment.

AFFIRMED in part, REVERSED in part, and REMANDED.

KAHN, HAWKES, and THOMAS, JJ., concur.


author: SAWAYA, J.

text:
    Lindsey L. WILCHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3753.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 2007.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   SAWAYA, J.

Lindsey Leon Wilcher appeals the order revoking his probation, arguing that a urine report compiled by Scientific Testing Laboratories, Inc., was erroneously entered into evidence as a business record. Specifically, Wilcher argues that the admission of the urine test, which reported a positive result for cocaine, should not have been admitted over objection at his probation revocation hearing because it violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Precedent from this court and others tells us that Wilcher is wrong and directs that we affirm the order under review.

In Russell v. State, 920 So.2d 683 (Fla. 5th DCA) (affirming revocation of defendant’s probation based upon victim’s hearsay and officer’s testimony), review granted, 926 So.2d 1270 (Fla.2006), we concluded that Crawford is inapplicable in probation revocation proceedings. Likewise, in Peters v. State, 919 So.2d 624 (Fla. 1st DCA), review granted, 924 So.2d 809 (Fla.2006), the court affirmed the revocation of a defendant’s community control based upon business record evidence from an independent laboratory showing the defendant’s positive drug test. The court in Peters certified to the Florida Supreme Court the question whether the testimonial hearsay rule in Crawford applied in community control and/or probation revocation proceedings. Expressing agreement with Russell and Peters, the Fourth District Court, in Jackson v. State, 931 So.2d 1062, 1063 (Fla. 4th DCA 2006), similarly held that Crawford is inapplicable in probation revocation proceedings and certified the same question as was certified in Peters.

Wilcher acknowledges that the cases we have cited are against him and lead to a result that provides him no relief, but asks this court to certify the question whether Crawford’s testimonial hearsay rule applies to probation and community control revocation proceedings. We grant that request and certify the following question to the Florida Supreme Court as one of great public importance:

DOES THE “TESTIMONIAL HEARSAY” RULE SET FORTH IN CRAWFORD V WASHINGTON, 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (2004), APPLY IN COMMUNITY CONTROL AND/OR PROBATION REVOCATION PROCEEDINGS?

AFFIRMED; QUESTION CERTIFIED.

TORPY and EVANDER, JJ., concur.


author: WARNER, J.

text:
    Jane IZQUIERDO, Appellant, v. GYROSCOPE, INC., etc., Appellee.
    No. 4D05-4599.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.

      Martin E. Leach of Feiler, Leach <⅞ McCarron, P.L., Coral Gables, for appellant.
    Neil V. Singh of Allen, Kopet & Associates, Fort Lauderdale, for appellee.
   WARNER, J.

After the jury returned a verdict finding no negligence on the part of a restaurant in the appellant’s action for damages for a slip and fall, the appellant sought a new trial. She claimed that the verdict was against the manifest weight of the evidence. The trial court denied the motion. Because the uncontroverted evidence shows at least some negligence on the part of the restaurant, we conclude that the trial court abused its discretion in denying the motion and reverse.

The appellant, Jane Izquierdo, filed a personal injury action alleging negligence by the defendant, Gyroscope, Inc., which owned and operated Giorgio’s Grill. She alleges that she slipped and fell on a wet napkin, breaking her leg. The defendant denied any negligence.

At trial, the jury learned that Giorgio’s was a restaurant which became a night club after certain hours. It had a tradition of both the wait staff and customers throwing paper napkins into the air as the music played throughout the evening. The napkins would land on the floor of the restaurant. No one would pick them up, although when they became too deep, customers would push them to the side. Because drinks were occasionally spilled, sometimes the napkins would be wet.

Both Izquierdo and her flaneé testified that they went to the restaurant to meet a friend around midnight on the night of the incident. They had been to Giorgio’s about five or six times before and knew that it became a night club after certain hours. They also knew of the napkin-throwing tradition and never thought it could be dangerous.

Upon arriving, they sat down at one of the tables in the back of the club. The restaurant was relatively crowded. Izquierdo had one drink and then went to the restroom. On the way back from the restroom she slipped and fell, breaking her leg in the process. After she was on the ground, she observed that the floor was wet and napkins were on her shoes. Her flaneé heard her scream, came running, and also observed the wet napkins on her shoes. While she did not know exactly how she slipped, she knew she slipped on something, and assumed that she slipped on the napkins. Her clothes were wet from being on the ground.

Izquierdo was in great pain and had to be carried out of the restaurant where she waited for an ambulance. She was transported to the hospital and had surgery the next day to repair her broken leg. She relied on a wheelchair for three months and continued to have pain and limitations afterward.

The manager of Giorgio’s also testified, although he was not present at the time of the incident. He was well aware of the custom of throwing napkins in the air and agreed that leaving wet napkins on the floor was a hazardous condition. He' admitted that no one cleans up the napkins until after closing, and in the meantime the napkins are simply pushed out of the way. In all the years the napkin-throwing tradition has existed, no one has ever fallen on them before Izquierdo’s fall.

In closing argument, the defendant’s attorney made two points regarding the restaurant’s liability. First, he noted that Izquierdo did not know exactly how she fell. Second, he argued comparative negligence, noting that both Izquierdo and her flaneé knew about the napkin-throwing tradition and had visited the restaurant on many occasions.

The jury returned a verdict for the defendant, finding that there was no negligence on its part. The court entered final judgment, and Izquierdo moved for a new trial, claiming that the verdict was against the manifest weight of the evidence. The trial court denied the motion, and Izquier-do appeals, claiming that the court erred by denying her motion for new trial.

The appropriate standard of review applied to a trial court’s denial of a motion for a new trial is whether the trial court abused its discretion. See Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999). Brown articulates the test for determining whether the trial judge committed an abuse of discretion and provides that:

[A]n appellate court must recognize the broad discretionary-authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.

Id. at 497-98. Furthermore, in Dewitt v. Maruhachi Ceramics of America, Inc., 770 So.2d 709, 711 (Fla. 5th DCA 2000), the Fifth District explained that:

The question for an appellate court is not whether or not the evidence was contrary to the manifest weight of the evidence presented below. Indeed that is the question addressed to the trial court on motion for a new trial. Rather, the appellate court is limited to considering whether or not the trial court-abused its discretion in denying a new trial. In order for [the appellate court] to reach that conclusion, the evidence must be clear and obvious, and not conflicting. ...

(citations and footnote omitted). See also K-Mart Corp. v. Collins, 707 So.2d 753, 755 (Fla. 2d DCA 1998) (recognizing that where there is conflicting evidence, the weight to be given that evidence is within the province of the jury).

Despite this deferential standard, “an appellate court should reverse a jury verdict when there is no rational basis in the evidence to support the verdict of the jury.” Sifford v. Trans Air, Inc., 492 So.2d 407, 408 (Fla. 4th DCA 1986). “[W]here the testimony on the pivotal issues of fact is not contradicted or impeached in any respect, and no conflicting evidence.is introduced, these statements of fact can not be wholly disregarded or arbitrarily rejected.” Merrill Stevens Dry Dock Co. v. G J Invs. Corp., Inc., 506 So.2d 30, 32 (Fla. 3d DCA 1987).

We conclude that the- trial court abused its discretion in denying the motion for new trial as the verdict finding no negligence on the part of the defendant is contrary to the undisputed evidence in the case. The testimony regarding negligence from both Izquierdo and her flaneé was not conflicting nor was it impeached. More importantly, the manager of the restaurant admitted that permitting the wet napkins to remain on the floor was a hazardous condition. Although the defendant argued in closing that Izquierdo did not know how she fell, the circumstantial evidence included her testimony that she slipped, went down on a wet floor, and found napkins on her shoes. The inference that the wet napkins on the floor caused her fall clearly was the only reasonable inference which could be drawn from the facts presented. The defendant offered no contrary interpretation consistent with the facts proved.

We are further persuaded that the evidence of the defendant’s negligence was clear and obvious by a reading of section 768.0710(1), Florida Statutes (2004), which provides:

The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.

This statute was enacted after Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 331 (Fla.2001), in which our supreme court held “that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition.... ” Thus, both the supreme court and the legislature agree that a business owner owes a duty to its invitees to make reasonable efforts to keep transitory foreign substances off the floor, which would include napkins. Failure to do so would be negligence.

Further, although Giorgio’s claimed that the napkin-throwing was known by Izquierdo and the existence of napkins on the floor was obvious, this would merely discharge the landowner’s duty to warn. It does not discharge the landowner’s duty to maintain the premises in a reasonably safe condition. Thus, whether the danger was open and obvious is an issue of comparative negligence. See Fenster v. Publix Supermarkets, Inc., 785 So.2d 737, 739 (Fla. 4th DCA 2001) (“A plaintiffs knowledge of a dangerous condition does not negate a defendant’s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment.”).

We are also guided by our decision in Christiana v. White, 346 So.2d 1036 (Fla. 4th DCA 1977), which involved an intersec-tional automobile collision where the defendant made a left turn after the left turn arrow had turned red. The plaintiff traveling in the opposite direction swerved to miss the defendant but managed to run into a concrete box. The jury returned a verdict for the defendant. Our court reversed the denial of the motion for new trial, stating:

[T]his case was tried on comparative negligence. By its verdict for the defendant-appellee herein, the jury necessarily concluded that defendant was without negligence which was a legal cause of the accident and that plaintiff was 100 at fault.
The record in the instant cause clearly shows some negligence on the part of appellee. We find that this jury verdict was against the manifest weight of the evidence and that the trial judge abused his discretion in denying appellant’s motion for a new trial.

Id. at 1037. Likewise, the record in the present case shows at least some negligence on the part of the defendant, even though a jury could find that Izquierdo was negligent herself. The jury’s verdict finding no negligence on the defendant’s part is contrary to the manifest weight of the evidence, and the trial court abused its discretion in denying the motion for new trial. We therefore reverse and remand for a new trial.

STEVENSON, C.J., and TAYLOR, J., concur.


author: MAASS, ELIZABETH T„ Associate Judge.

text:
    John E. FIELDS, Appellant, v. Patricia KLEIN, Appellee.
    No. 4D06-410.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.

      Philip D. Parrish of Philip D. Parrish, P.A., Miami, and Stanley B. Prager, P.A., Coral Gables, for appellant.
    Michael Metzner, Pompano Beach, for appellee.
   MAASS, ELIZABETH T„ Associate Judge.

John E. Fields appeals a final judgment awarding his prior counsel a contingency fee. We reverse, finding that Fields discharged his lawyer before the contingency was realized.

Fields was injured in a motor vehicle accident. He hired Patricia Klein to represent him under a written contingency fee contract. The contract obligated Fields to pay a one-third contingency fee of the first million dollars recovered if the action settled prior to the defendant’s filing an answer or demand for arbitration. Further, consistent with case law, the contract permitted Fields to terminate Klein’s services without cause, but obligated him to pay her the reasonable value of her services if terminated prior to the realization of the contingency. See Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982). Finally, the agreement granted Klein a lien against settlement proceeds if she was discharged.

Based on a misunderstanding of the policy limits, Klein submitted a $10,000 demand to the third party’s insurance carrier on December 7, 2002. She submitted a $100,000 demand on May 13, 2003. Fields discharged Klein on May 20, 2003. At that time, the adjuster had orally offered $50,000 to settle. Fields hired successor counsel, who ultimately settled the claim for $110,000 in December, 2003. Klein refused to endorse the settlement check, which included her as a payee, even after Fields’s successor counsel offered to hold whatever portion of the settlement Klein claimed was owed to her in his trust account, pending settlement of her claim. Consequently, Fields sued Klein for a declaratory judgment, adjudication of her charging lien, and a mandatory injunction to compel her to endorse the insurance company’s check.

On October 27 and November 5, 2004, the trial court held an evidentiary hearing to determine whether the contingency had been realized. On June 9, 2005, prior to entry of any order following the hearing, Fields filed a motion to amend the complaint, seeking leave to amend his pleadings to claim that his contract with Klein was void based on material misrepresentations and fraud in the inducement or, alternatively, that Klein was discharged for cause, reducing her quantum meruit recovery. See Franklin & Marbin, P.A. v. Mascola, 711 So.2d 46 (Fla. 4th DCA 1998). Fields claimed that when he hired Klein she told him she had substantial experience in accident cases and that her partner, Geraldine Braun, would be Fields’s primary contact. Fields alleged that he later discovered that Klein did not practice personal injury litigation; that she would not have represented him had the case gone to trial; that Klein and Braun did not work together and that, instead, each was employed full time by other employers; and that Braun was not an attorney but a paralegal. The trial court denied the motion for leave to amend.

No order was entered based on the October and November 2004 evidentiary hearing until December 13, 2005, when the trial court signed what appears to be a counsel-prepared order determining Klein was entitled to her full contingency fee, without any findings of fact other than the general statement that the contingency had been realized. A final judgment consistent with the order awarding Klein a one-third fee was entered January 19, 2006. Another final judgment, also consistent with the December, 2005 order but in slightly different form, was entered Janu-. ary 25, 2006. The trial court granted Fields’s motion to vacate the second judgment on February 13, 2006.

It is clear, that the contingency was not realized prior to Klein’s discharge. See Cooper v. Ford & Sinclair, P.A., 888 So.2d 683 (Fla. 4th DCA 2004) (concluding that contingency fee was earned when settlement was reached). The case was not settled before Fields terminated Klein’s services. Consequently, under both case law and the parties’ contract, Klein is entitled to recover, if at all, only the reasonable value of her services. Klein’s reliance on Milton Kelner, P.A. v. 610 Lincoln Road, 328 So.2d 193 (Fla.1976), is misplaced. There, the attorney was discharged after his client settled with the insurer.

Further, we find that the trial court abused its discretion in denying Fields leave to amend his complaint to seek to void his fee contract with Klein or otherwise reduce the amount owed based on the alleged fraudulent inducement and mishandling of his case. Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile. See Life Gen. Sec. Ins. Co. v. Floral, 667 So.2d 967 (Fla. 4th DCA 1996). None of those factors is present here.

We find that Fields’s motion for recusal was based on adverse legal rulings and expressions of dissatisfaction with counsel’s behavior and, therefore, was legally insufficient and properly denied. See Mansfield v. State, 911 So.2d 1160 (Fla. 2005); Thomas v. The Chase Manhattan Bank, 857 So.2d 989 (Fla. 4th DCA 2003), receded from on other grounds, Santa Catalina Townhomes, Inc. v. Mirza, 942 So.2d 462 (Fla. 4th DCA 2006); Ellis v. Henning, 678 So.2d 825 (Fla. 4th DCA 1996).

The action is remanded to the trial court with direction to vacate the order finding the contingency had been realized and the final judgment predicated on that order and to grant the motion for leave to amend.

Reversed and Remanded.

GROSS and HAZOURI, JJ., concur.


text:
    Carlos GAUNA, Appellant, v. FRANK STEELE CORPORATION and The Hartford, Appellees.
    No. 1D06-5386.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2007.
    Albert Marroquin of Richard E. Zaldi-var, P.A., Miami, for Appellant.
    Jason T. Selwood of Law Offices of James A. Keating, Hollywood, for Appel-lees.
   PER CURIAM.

DISMISSED. Mintz v. Broward Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001).

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


text:
    C.V.B., Father In the Interest of H.M.V.B., D.W.V.B., C.V.B, children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. D.M., Mother of H.M.V.B., D.W.V.B., C.V.B., children, Appellant, v. Department of Children and Families, Appellee.
    Nos. 1D06-3423, 1D06-4044.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2007.
    Joseph A. Alldredge, Panama City, for Appellant, in Case No. 1D06-3423, and Michael R. Reiter, Lynn Haven, for Appellant, in Case No. 1D06-4044.
    Monique M. Bryan, Department of Children and Families, Panama City, for Ap-pellee in both cases.
    Thomas W. Young, Guardian ad Litem Program, Orlando, and Thomasina F. Moore of Thomasina Moore, P.A., Guardian ad Litem Program, Tallahassee, for Guardian ad Litem in both cases.
   PER CURIAM.

AFFIRMED. See A.T. v. Dep’t of Health & Rehab. Servs., 490 So.2d 155 (Fla. 1st DCA 1986).

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


text:
    Louis J. PEARLMAN, Trans Continental, etc., et al., Petitioners, v. J. CHENEY MASON, P.A. and William B. Pringle, III, Respondents.
    No. 5D07-25.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2007.
    Mary D. Solik, of Foley Lardner, LLP, Orlando, for Petitioner.
    Thomas K. E quels, and J. Stanley Chapman of Equels Law Firm, Orlando, for Respondent.
   PER CURIAM.

We find that the Petitioner’s verified Motion for Disqualification of the trial judge was legally sufficient. See Fla. R. Jud. Admin. 2.330(d). Accordingly, we grant the petition for writ of prohibition and quash the trial court’s order denying Petitioner’s motion. We withhold issuing the writ, as we assume that the trial court will act in conformance with this opinion.

PETITION GRANTED.

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


author: SHAHOOD, J.

text:
    Susan M. MARCHESE, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Yellow Book Sales and Distribution Co., Inc., Appellees.
    No. 4D05-4714.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Deric F. Tipton of Ehrlich & Tipton, LLC, West Palm Beach, for appellant.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
   SHAHOOD, J.

Appellant, Susan Márchese, appeals an order of the Unemployment Appeals Commission,. finding she was not eligible for unemployment compensation benefits after she voluntarily quit her job. The Commission affirmed the decision of the appeals referee. We affirm.

In this case the nanny who cared for appellant’s seven-month-old child quit, thus resulting in appellant’s requesting, but being denied, a leave of absence. We hold that this did not constitute a “family emergency” under the facts of this case. Appellant voluntarily left work without good cause attributable to her employer and therefore is not entitled to unemployment benefits.

Appellant argues that she chose not to return to work because a family emergency existed. “The term ‘family emergency exception’ is not statutory, a point the UAC makes, but it has developed from cases.” Tittsworth v. Unemployment Appeals Comm’n, 920 So.2d 139, 140 (Fla. 4th DCA 2006). Appellate courts have held that a family emergency exists when an employee needs to take time off from work to care for an ill family member or because a death occurred. See Andres v. Unemployment Appeals Comm’n, 888 So.2d 119 (Fla. 4th DCA 2004) (holding that a former employee is entitled to benefits after leaving work to care for her ill child).

In contrast to those situations, an overwhelming majority of cases have held that leaving work for reasons not related to a medical illness or death does not constitute a family emergency. See King v. Fla. Unemployment Appeals Comm’n, 763 So.2d 1151, 1154 (Fla. 4th DCA 2000) (holding that employee’s traveling overseas for a wedding did not amount to a family emergency); Margulies v. Pallott & Poppell, 599 So.2d 195 (Fla. 3d DCA 1992) (affirming denial of benefits where employee missed almost two weeks to care for a family member and the referee determined there was no “family emergency”); City of Riviera Beach v. Fla. Dep’t of Commerce, Div. of Employment Sec., 372 So.2d 1007 (Fla. 4th DCA 1979) (holding that an employee was guilty of misconduct by not reporting to work after adopting a child); Beard v. State Dep’t of Commerce, 369 So.2d 382, 385 (Fla. 2d DCA 1979) (stating “[a] mother’s unwillingness to leave her children in the care of others at night is certainly good cause for her to resign but it is not good cause which can be attributed to her employer”).

Accordingly, we hold, based on the record before us, that the decision of the appeals referee and the order of the commission were supported by competent, substantial evidence and were in compliance with the essential requirements of law. See Ayers v. Unemployment Appeals Comm’n, 848 So.2d 1239, 1240 (Fla. 4th DCA 2003).

Affirmed.

STONE and TAYLOR, JJ., concur.


author: THOMPSON, J.

text:
    Angel Ruben Lopez HERNANDEZ, Appellant, v. Angel Raul Lopez HERNANDEZ, et al., Appellee.
    No. 5D06-1230.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.

      Angel Ruben Lopez Hernandez, Dublin, OH, pro se.
    Elizabeth H. Pastrana, San Juan, PR, pro se.
    No appearance for Angel Raul Lopez Hernandez.
   THOMPSON, J.

Angel Ruben Lopez Hernandez (“Ruben”) appeals the trial court’s order refusing to appoint him as personal representative of his father’s estate, although he was named in his father’s will. Instead of appointing Ruben, the trial court appointed an unrelated attorney as personal representative. The only basis for the trial court’s ruling was that there was animosity between Ruben and his brother, Angel Raul Lopez Hernandez (“Raul”), who also applied to be appointed personal representative. We treat Ruben’s petition for writ of certiorari as a timely notice of appeal and reverse, concluding the trial court abused its discretion.

Angel Lopez Maldonado (“Maldonado”) died in January 2005. His will named Ruben as personal representative or, if Ruben did not survive Maldonado, Raul. The two brothers each claimed he should be appointed the personal representative of their father’s estate. Appellee Elizabeth Hernandez Pastrana (“Elizabeth”) is their mother and the ex-wife of their father, Maldonado. She intervened in the case because of litigation in Puerto Rico concerning a dispute over jointly-owned property. Ruben and Elizabeth argue that the trial court abused its discretion by refusing to appoint Ruben as personal representative of Maldonado’s estate.

The record suggests that Ruben and Raul have quarreled since their father’s death and shows both petitioned to be named personal representative. In refusing to appoint Ruben as the personal representative, the trial court entered an order that stated:

This cause came for hearing ... for appointment of personal representative for the estate of [Maldonado].... [Ruben] was named executor in the will.... [Raul] filed a separate petition to be declared personal representative.... [Ruben] possessed the will ... and surrendered it to ... [Elizabeth].... Neither of the brothers can agree on who will be personal representative of the estate.
Wherefore, this court appointed [unrelated] attorney ..., and upon his agreement to serve as PR on March 2, 2006. Thereby [sic] relieving the family of the problem that had arisen between the respective PR’s.

We review the trial court’s order to determine if there was an abuse of discretion when it denied Ruben’s request to be named personal representative of Maldonado’s estate. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Schleider v. Estate of Schleider, 770 So.2d 1252 (Fla. 4th DCA 2000). In Schleider, the Fourth District wrote:

The general rule of law is that trial courts do not have discretion to refuse to appoint the personal representative named by the testator in the will unless that person is disqualified by law. Clearly, the testator’s selection of a personal representative should be afforded great deference. Only in exceptional circumstances does a court have the discretion to refuse to appoint a person as personal representative who was named in the decedent’s will.

Schleider, 770 So.2d at 1253 (citations omitted); see also § 733.301(l)(a)l., Fla. Stat. (2005).

We determine the brothers’ dispute does not constitute exceptional circumstances. Exceptional circumstances may include those in which “unforeseen circumstances arise [that] clearly would have affected the testator’s decision had he been aware of such circumstances, but the testator had no reasonable opportunity prior to his death to change the designation of the personal representative in his will.” Schleider, 770 So.2d at 1253-54 (quoting Pontrello v. Estate of Kepler, 528 So.2d 441, 443 (Fla. 2d DCA 1988)). In addition, the preferred personal representative “may be considered unsuitable to administer the estate if there is an adverse interest of some kind, hostility to those immediately interested in the estate, or an interest adverse to the estate itself.” Id. at 1254 (citing In re Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DCA 1976)). In making a decision, the circuit court may consider the person’s character, ability, and experience to serve as personal representative and may refuse to appoint the preferred person if the record supports its conclusion that the person lacks the necessary qualities. Id. (citing Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996)); accord DeVaughn v. DeVaughn, 840 So.2d 1128, 1133 (Fla. 5th DCA 2003).

Here, the record shows the brothers’ dispute is acrimonious, but unremarkable. There is no record evidence that Ruben does not meet the statutory criteria to serve as the personal representative. Record review indicates that Ruben is an Ohio attorney who has been diligently determining the estate’s assets and liabilities. Raul raised two reasons why he should have been appointed personal representative. First, he claimed that the administration of the estate had taken too long because Ruben had the original will and would not return it. Second, he implied that Ruben deliberately withdrew more money from Maldonado’s account than he was entitled to; however, this implication is undermined by the bank letter that Raul submitted in support of his suggestion. These allegations would not support a finding that exceptional circumstances exist or that Ruben lacks the character, ability, and experience to serve as personal representative. DeVaughn, 840 So.2d at 1133-34.

More important, the trial court did not detail the facts that would support the denial of Ruben’s petition for administration, but referred only to the brothers’ conflict as its basis for declining to appoint either as personal representative. This was insufficient because a dispute between the estate’s beneficiaries, without more, does not constitute sufficient grounds to refuse to appoint an otherwise qualified person named as personal representative in the decedent’s will. See Schleider, 770 So.2d at 1254. Where a dispute will cause unnecessary litigation and impede the estate’s administration, and either the person lacks the character, ability, and experience to serve or exceptional circumstances exist, the totality of circumstances may permit the court to refuse to appoint the personal representative named in the will. Id. Here, the record does not support such a conclusion.

Accordingly, we REVERSE and REMAND with instructions to grant Ruben’s petition to be named personal representative.

ORFINGER and TORPY, JJ., concur.

      . Technically an appellee, Elizabeth submitted a pro se brief agreeing that Ruben should have been appointed the personal representative. Ruben's position on appeal is unopposed.


author: THOMPSON, J. LAWSON, J.,

text:
    Michael DELLOFANO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2805.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.

      Michael Dellofano, Century, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Michael Dellofano seeks review of the summary denial of his May 2006 “Motion for Judicial Enforcement of Plea Agreement and Sentence Intent.” The trial court denied the motion in July 2006, and Dellofano timely appealed. We reverse.

Dellofano pled guilty to aggravated battery with a weapon causing great bodily harm in June 2003, and was sentenced to two years’ incarceration, with 273 days’ credit for time served, followed by 24 months of supervised probation. In September 2005, he admitted to a probation violation and was sentenced to 68 months’ incarceration with 793 days’ credit for time served. He contends this sentence was imposed pursuant to a negotiated plea and that the parties’ intent called for a sentence of 63 months with credit for 793 days. Dellofano subsequently learned that the Department of Corrections (“DOC”) forfeited 98 days of his previously earned credit under section 944.28, Florida Statutes. He argues that the forfeiture thwarted the intent of the parties and sentencing court, and that, had he known he must serve an additional 98 days, he would not have pled guilty to the violation.

Dellofano’s motion sought resentencing with 98 fewer days’ incarceration to effectuate the plea agreement. The trial court denied his motion:

[P]ursuant to Section 944.28(1), Florida Statutes, the [DOC] may, without notice or hearing, forfeit all gain-time earned by a prisoner upon his re-incarceration following a revocation of probation. Thus, it is very likely that despite the fact that this Court afforded Defendant substantial credit for time served, he may remain incarcerated beyond the date he has calculated as his proper release date because the [DOC] has decided to forfeit any previously earned gain-time. Hence, should Defendant seek to challenge the [DOC’s] forfeiture of his gain-time, he is advised to pursue administrative grievance procedures within the Department itself as such forfeiture is beyond this Court’s control.

Generally, the DOC may revoke gain-time without being countermanded by the court. See Barnett v. State, 933 So.2d 1269 (Fla. 5th DCA 2006); Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002); Jones v. State, 782 So.2d 552 (Fla. 5th DCA 2001). However, such a forfeiture cannot thwart the terms contemplated in a plea agreement. See Barnett, 933 So.2d at 1269; Dellahoy, 816 So.2d at 1253. We vacate the trial court’s denial of Dellofa-no’s motion and remand for reconsideration. See Martin v. State, 816 So.2d 1213 (Fla. 5th DCA 2002). If Dellofano’s allegations are correct, the trial court should either resentence him in a manner that effectuates the plea agreement after considering the DOC forfeiture of gain time or allow him to withdraw his plea. See Della-hoy, 816 So.2d at 1253.

REVERSED.

PLEUS, C.J. concurs.

LAWSON, J., concurs specially, with opinion.

LAWSON, J.,

concurring specially.

There is no provision in the Florida Rules of Criminal Procedure for a “motion to enforce plea agreement.” Therefore, the only avenue available for an appellant to pursue his or her postconviction claim below is a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. See Cichoski v. State, 874 So.2d 695 (Fla. 4th DCA 2004) (affirming denial of motion to enforce plea agreement on grounds that motion is not authorized- by Florida Rules of Criminal Procedure); Seabrooks v. State, 817 So.2d 934 (Fla. 4th DCA 2002) (same). I recognize that wé have entertained appeals from orders on motions to enforce plea agreements in the past, see, e.g., Barnett v. State, 933 So.2d 1269 (Fla. 5th DCA 2006); Jones v. State, 782 So.2d 552 (Fla. 5th DCA 2001), but I do not believe that we should continue to do so when there is no rule authorizing the motion. In other words, I agree with the Fourth District’s holdings in Ciehoski and Seabrooks.

In this case, however, Dellofano’s motion was filed under oath and within the deadline for filing a rule 3.850 motion. Because Dellofano’s motion in this case met the procedural requirements of rule 3.850, it should have been treated as such anyway. See, e.g., Reese v. State, 896 So.2d 807, 808 (Fla. 3d DCA 2005); Gill v. State, 829 So.2d 299, 300 (Fla. 2d DCA 2002) (“Where a movant files a properly pleaded claim but incorrectly styles the postconviction motion in which it was raised, the trial court must treat the claim as if it had been filed in a properly styled motion.”). Therefore, Dellofano’s error in styling the motion as a motion to enforce a plea agreement would have made no difference in this case.

As for the merits, I would note that Dellofano is not simply alleging that he misunderstood the potential consequence of gain time forfeiture upon entering his plea. Rather, he has alleged under oath that his plea bargain was specifically structured to assure that he would not suffer the loss of previously accrued gain time (which is why, he claims, the trial court expressly ordered day-for-day credit for all prior prison time, rather than simply ordering the Department of Corrections to credit him with his prior prison time). As such, Dellofano has stated a valid claim for relief under rule 3.850. Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002). Because the trial court’s order fails to refute Dellofano’s sworn allegations, I agree with the majority that reversal is required.


text:
    Craig WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1980.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Craig Walker appeals from the order finding him in indirect criminal contempt for violating the terms of the permanent injunction prohibiting him from having any contact with Karen McCue. Walker argues that the trial court erred in denying his motion for judgment of acquittal where the evidence was insufficient to support Ms. McCue’s claim that he had violated the injunction by text-messaging Ms. McCue’s cell phone. We agree. Our intensive review of the record revealed no evidence linking Walker to either of the text messages received by Ms. McCue, and thus we reverse.

REVERSED.

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


author: LAWSON, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Anthony R. ALVARADO, Respondent.
    No. 5D06-3442.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.
    Ralph J. McMurphy, Department of Children and Families, Wildwood, for Petitioner.
    No appearance for Respondent.
   LAWSON, J.

The Department of Children and Families, (“Department”), seeks certiorari review of an order finding Anthony R. Alvarado incompetent to proceed in his criminal case, and involuntarily committing Alvarado to the Department for mental health treatment pursuant to section 916.13, Florida Statutes (2006). The order on review states that the trial court based its decision solely upon the written reports of experts appointed pursuant to section 916.115, Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.210(b). There were three experts appointed to evaluate Alvarado. All three reported that Alvarado was competent to proceed.

Because the trial court’s finding of incompetence was not supported by the record, we find that the challenged order departs from the essential requirements of the law. See, e.g., Dep’t of Children & Families v. C.R.C., 867 So.2d 592 (Fla. 2004). Accordingly, we grant certiorari and quash the order on review.

CERTIORARI GRANTED; ORDER QUASHED.

GRIFFIN and MONACO, JJ., concur.


text:
    Robert L. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3808.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.
    Robert L. White, Polk City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

White entered a plea of no contest in April, 1994, to burglary of a dwelling, aggravated assault of a person over 65 years of age, and attempted sexual battery. He did not file a direct appeal. He has filed 12 post-conviction motions and petitions, almost all of which attack his sentences. He now appeals the summary denial of his later motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because his motion is untimely and successive, we affirm. White is hereby advised that the filing of anymore successive or frivolous pleadings will result in a show cause order pursuant to State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999) (court can prohibit further pro se attacks on defendant’s conviction and sentence as sanction for prior repeated and frivolous motions after giving him notice and reasonable opportunity to respond).

AFFIRMED.

GRIFFIN, PALMER and EVANDER, JJ., concur.


text:
    Craig Eugene EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3897.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Craig Eugene Edwards [“Edwards”] appeals his conviction of attempted felony murder and robbery with a firearm, for which he was sentenced to a term of life imprisonment. We affirm because the trial court did not err in admitting the Orlando detective’s three-way telephone conversation with Edwards and Edwards’ mother. Sufficient evidence was presented to confirm that the male voice belonged to Edwards. We also find that the claimed error was not properly preserved for appellate review and that, in any event, given the overwhelming evidence of Edwards’ guilt, any error would be harmless.

AFFIRMED.

GRIFFIN, SAWAYA and TORPY, JJ., concur.