author: GRIFFIN, J.

text:
    Martin Haynes NICOL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2607.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 2006.
    James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Martin Haynes Nicol, Jr. [“Nicol”] appeals his conviction for conspiracy to commit robbery with a firearm. We affirm.

On December 10, 2002, at approximately 5:25 a.m., Deputy Bogan of the Orange County Sheriffs office observed two black males at a closed strip mall, looking around the corner towards a 7-Eleven Convenience Store. One male was crouched down, with the other leaning over his shoulder, and both men were wearing dark clothing. Deputy Bogan attempted to make contact with the two men, who took off running upon spotting the deputy. The men ran southbound to a vehicle parked near a dumpster. As they neared their vehicle, Deputy Bogan observed that they were wearing dark colored bandanas tied “Old West style” around their noses and covering the lower half of their faces. Nicol dove headfirst into the vehicle, reaching up to his waist, before withdrawing from the vehicle. A second man ran around to the passenger side and briefly disappeared from view, crouching down beside the vehicle. The deputy ordered the men to show him their hands and get on the ground. They obeyed after two or three commands were given. After backup arrived, the two men, along with a third man found in the back seat of the vehicle, were arrested on the scene for loitering and prowling. A pat-down search of Nicol yielded a .40 caliber magazine for a semi-automatic style handgun. A matching .40 caliber handgun was found under the driver’s seat. A BB style or pellet gun was found on the ground outside the passenger door.

Following their arrest, all three men were taken to the station, where they were interviewed by Detective Eifler. During his interview, Nicol said that the three men were at their apartment all day and decided to take a drive. At first, he said they parked behind a muffler shop to get out and take a walk, at which time they were stopped by Deputy Bogan. He later admitted, however, that they had discussed the need to get some money any way they could, which included the possibility of robbing someone. He said they talked about robbing someone coming out of the store, but did not intend to rob the store. During the interview, Nicol produced a bandana from his pocket. He said he was wearing it around his neck when they were outside the store. He admitted he had a gun in his waistband when he was first approached by Deputy Bogan and that Turner, a second man, was carrying a BB gun. Nicol said that when he had run back to his car, he had thrown his gun into the back seat.

Based on these facts, Nicol filed a motion to suppress, alleging that he had been detained without a reasonable suspicion of criminal activity. He also contended that his arrest for loitering and prowling was invalid, as the officer failed to give him the opportunity to dispel any alarm or immediate concern which would otherwise be warranted by his presence near the 7-Eleven, which he claimed was required by section 856.021(2), Florida Statutes (2001).

At the conclusion of the hearing, the court denied the motion to suppress, stating:

In the case here, Officer Bogan — Deputy Bogen clearly had reasonable suspicion to stop the individuals. First, he saw them crouching, observed — at a closed business, observing the only open business in the area. He circled that business and came around the corner. And upon his vehicle becoming visible around the corner, both individuals took flight and did not stop, even when he initiated his lights and chirped his siren. They looked back at the officer, obviously seeing him, and the officer observed on their faces bandanas. Deputy Bogen would have been derelict in his duty had he not further investigated this matter.
* * *
The initial detention and investigation was lawful under Illinois v. Wardlow, suspicious activity, coupled with headlong flight. The officers had probable cause at that point to arrest the defendant for resisting an officer without violence. Upon further investigation, discovering the firearm certainly had reached the probable cause to arrest for carrying a concealed firearm.
The Third District in Tubbs v. State at 897 So.2d 520, has indicated that as long as the officer is right, even for the wrong reasons, that that is sufficient to pass constitutional muster.

A jury found Nicol guilty as charged of conspiracy to commit robbery with a firearm. The jury made special findings that Nicol had possession of a firearm and was wearing a mask.

The trial court properly concluded that the initial encounter between Deputy Bogan and Nicol constituted a valid investigatory stop because Deputy Bogan had a reasonable suspicion that Nicol had committed, was committing, or was about to commit a crime. See Popple v. State, 626 So.2d 185 (Fla.1993); § 901.151, Fla. Stat. (2001); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (authorizing investigatory stop because officers had reasonable suspicion that defendant was about to commit midday robbery, where officer observed Terry and his compatriot, Chilton, repeatedly walk past and peer into a store window, and then confer with a third man, Katz, leading the officer to believe the men were planning to rob the store).

Indeed, although not discussed by the trial court, Deputy Bogan’s observations may have supported probable cause for arrest once the deputy saw that the suspects were wearing masks. Men wearing masks at 5 a.m. in the morning, acting furtively and watching a 7-Eleven store would appear to furnish probable cause to arrest for attempted robbery or conspiracy to commit robbery. See People v. Terrell, 110 Ill.App.3d 1086, 66 Ill.Dec. 816, 443 N.E.2d 742 (1982) (affirming conviction for attempted armed robbery, where defendant was observed hiding in weeds of an empty lot about 25 feet from recently opened gas station, was seen wielding a gun, fled when police arrived and was found with black ladies’ stockings in his pocket); Hampton v. State, 468 N.E.2d 1077 (Ind.Ct.App.1984) (holding evidence sufficient to support conviction for attempted robbery where defendant parked his car near restaurant building next to a busy highway, hid in the bushes attempting to avoid light from passing cars and was found wearing a ski mask which could be pulled down over his face, even though defendant did not enter restaurant or accost employees); see also State v. Thompson, 348 So.2d 618 (Fla. 4th DCA 1977); City of St. Paul v. Johnson, 288 Minn. 519, 179 N.W.2d 317 (1970).

AFFIRMED.

SAWAYA and EVANDER, JJ„ concur.

      . Section 856.021(2) provides:
      (1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
      (2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it im

        practicable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.

        . We note that by statute, wearing a mask has been made a misdemeanor of the second degree under certain circumstances. See generally §§ 876.12-20, Fla. Stat. (2001). For example, section 876.12 criminalizes wearing a mask or hood on a public way; section 876.13 criminalizes the wearing of a hood or mask on public property; and section 876.14 makes it illegal to wear a hood or mask on the property of another. These statutes, which were first passed in the 1950's, were apparently aimed at the Ku Klux Klan. The Florida Supreme Court found one of these statutes (all of which are virtually identical) unconstitutional in Robinson v. State, 393 So.2d 1076 (Fla.1980) (holding that statute criminalizing wearing hood or mask on public property was overbroad, and exceptions provided by section 876.16 were not sufficient to cure this fatal overbreadth, nor were the statutory words susceptible of any limiting construction). The legislature apparently attempted to cure these problems in 1981, by the passage of section 876.155, Florida Statutes, which limits the application of these statutes.

      . Even if Nicol’s arrest for loitering and prowling were invalid, the arrest was still valid since the facts known to the officer would have supported his arrest on a valid, alternative basis. See, e.g., State v. Carmody, 553 So.2d 1366 (Fla. 5th DCA 1989); McCarter v. State, 463 So.2d 546, 549 n. 1 (Fla. 5th DCA 1985).


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Craig MAURER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1601.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 2006.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Craig Maurer presents to us an order of restitution and alleges that reversal is warranted because the order erroneously allows double recovery to the victim of his crimes. Specifically, the order, which was entered by the trial court after Maurer entered pleas of guilty to two counts of grand theft and one count of grand theft motor vehicle, requires Maurer to pay the victim $12,475 to compensate her for her loss of money and a number of pieces of jewelry, including several rings that Maurer stole and then pawned. Maurer argues that because the pawned rings were being held by the pawn shop pursuant to police order and could be retrieved upon a $160 payment to the pawn shop, which he claims he had stipulated to pay, the trial court erred by including the value of those rings in the restitution order.

In the constellation of rights provided to Maurer as a criminal defendant, he points to the general principle, applicable in all instances where restitution is awarded, that a defendant may not be ordered to pay an amount of restitution that exceeds the measure of damages suffered by the victim of the crime. See Kirby v. State, 863 So.2d 238, 243 (Fla.2003) (“[T]he restitution statute does not permit a double recovery of the same damages....”); Bowman v. State, 698 So.2d 615, 616 (Fla. 2d DCA 1997) (“A defendant may not be ordered to pay restitution in excess of the damages caused by his criminal conduct. The purpose of restitution is to make the victim whole, not to make him better off than before the theft.”) (citations omitted). Certainly, this principle ensures fairness in the process of determining the amount of restitution and we agree with Maurer that it should be applied to this case.

But, we are also required to protect the rights of the innocent crime victim by proper application of the provisions of section 775.089, Florida Statutes (2005), which requires the trial court to order the defendant to make restitution to the victim for “[djamage or loss caused directly or indirectly by the defendant’s offense” and for “[d]amage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution.” § 775.089(1)(a), Fla. Stat. (2005). This statute is the result of a rather long process of legislative amendment intended to strengthen the rights of innocent crime victims. As the court recently explained in Koile v. State, 934 So.2d 1226 (Fla.2006):

In numerous years, the Legislature has passed and amended the restitution statute, and each time the Legislature has stated that its intent is to ensure that victims of crime are properly compensated and respected by the criminal justice system. For example, in 1984 when the Legislature amended section 775.089 to include the provisions at issue, the Legislature made explicit findings that “[e]ven though there is growing recognition that the criminal justice system would cease to function without the cooperation of victims and witnesses, the historic unresponsiveness of the criminal justice system to the real needs of victims and witnesses has not yet been fully corrected.” Ch. 84-363, § 2, at 2144, Laws of Fla. Moreover, in the same legislative findings, the Legislature also noted that “[wjhile state law provides the option of financial restitution to victims by defendants, most victims are never fully or even partially compensated by defendants for their injuries and other losses.” Id. Accordingly, the Legislature required courts to order the defendant to make restitution to the victims unless clear and compelling reasons existed to justify the nonpayment of restitution.... In 1992, the Legislature amended section 775.089 slightly, and in the bill amending the statute specifically noted that it had previously determined that “the state has a moral responsibility to provide aid, care, and support to victims of crime.” Ch. 92-107 at 901, Laws of Fla. (preamble).

Id. at 1232-33 (footnotes omitted). This analysis led the court to conclude that the main purpose of section 775.089 is to guarantee that innocent crime victims are compensated for their losses and that anything less than full compensation would defeat the purpose of the statute. Moreover, failure to award the full measure of recompense due the crime victim would thwart another very important purpose of restitution, which is to “serve the rehabilitative, deterrent, and retributive goals of the criminal justice system.” Kirby, 863 So.2d at 242.

There are no clear and compelling reasons not to order restitution here and, therefore, we will proceed to determine whether the restitution order entered by the trial court requires that Maurer pay his victim full compensation and no more. In order to resolve this issue, we must determine whether a stipulation was made and, if so, its terms and conditions. While not a model of clarity, the transcript of the restitution hearing does strongly suggest that a stipulation was entered into that Maurer would pay $160 to retrieve the stolen rings from the pawn shop or, at the least, the parties contemplated addressing the pawned items at a later hearing. The logic of such an approach is clear. If and until the pawned items are actually returned to the victim, she is not made whole. Other than the attorneys’ oral representations at the restitution hearing, there was no evidence of the exact cost to recover the pawned rings from the pawn shop or even evidence that the pawn shop still had possession of the rings. The trial court was obviously concerned about entering an order requiring Maurer to pay $160 because it was possible that the victim would take the money to the pawn shop only to discover that the rings were not there.

Based on our review of the record, we conclude that in order to comply with our responsibility to protect the rights of the crime victim to receive full compensation for her losses while ensuring that Maurer is not required to pay any more than is necessary to achieve that objective, we must reverse the order of restitution and remand this case to the trial court for a hearing to determine the status of the pawned items. If the victim has not obtained the pawned items and the items are still being held by the pawn shop, then the cost of getting them out of pawn should be imposed as restitution and the restitution order modified to subtract the value of these items. If the pawn shop did not hold the items and the victim never received them, then restitution in the full amount originally ordered would be appropriate.

REVERSED and REMANDED.

PLEUS, C.J. and THOMPSON, J., concur.

      . Section 539.001(16), Florida Statutes, provides that law enforcement may place a hold order on items in possession of a pawnbroker where there is probable cause to believe the items were misappropriated by the conveying customer. However, the hold order is good for only 90 days unless extended by court order. The record in the instant case does not contain a copy of the hold order referred to at the restitution hearing, so no dates are ascertainable. It is entirely possible that the hold expired and the pawnbroker disposed of the rings as provided for by statute.


author: STRINGER, Judge.

text:
    T.J.A., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3938.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2006.
    Rehearing Denied Oct. 13, 2006.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

T.J.A., a juvenile, seeks review of three orders in three separate cases adjudicating him delinquent and committing him to a residential program. We affirm.

In case number 03-2101, the State charged T.J.A. with a violation of probation on his adjudication for possession of cannabis. The amended affidavit of violation charged that T.J.A. violated probation by committing new law violations as charged in case numbers 03-5674 and 04-1223. In case number 03-5674, the State charged T.J.A. with possession of cocaine based on an incident on July 25, 2003. In case number 04-1223, the State charged T.J.A. with sale or delivery of cocaine within 1000 feet of a school and possession of cocaine with intent to deliver within 1000 feet of a school based on an incident on February 28, 2004.

Judge Manuel Menendez, Jr., conducted two adjudicatory hearings on the charges on June 14, 2004. In case number OS-5674, the court found T.J.A. guilty as charged. In case number 04-1223, the court found T.J.A. guilty of sale or delivery of cocaine. The court found T.J.A. in violation of his probation in case number 03-2101 based on its finding of guilt in case number 04-1223. We conclude that the State presented sufficient evidence to support these findings.

Judge Richard A. Nielsen conducted the disposition hearing, and he adopted the Department of Juvenile Justice’s recommendation that T.J.A. be committed to a moderate risk residential program with special conditions of supervision. In case number 03-2101, T.J.A. was committed for one year. In case number 03-5674, T.J.A. was committed for five years or until T.J.A.’s twenty-first birthday. In case number 04-1223, T.J.A. was committed for fifteen years or until his twenty-first birthday. We conclude that there was no error in the disposition.

Affirmed.

WHATLEY and SALCINES, JJ., Concur.


author: PALMER, J.

text:
    Kiini A. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4476.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 2006.
    Brooke V. Elvington of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Kiini A. Jones appeals the trial court’s order summarily denying “Ground E” of his motion for postconviction relief. Concluding that the trial court’s ruling is supported by the record, we affirm.

Jones was convicted of committing the crimes of capital sexual battery, attempted lewd and lascivious molestation, and attempted solicitation of a lewd act. He was sentenced to a term of life in prison on the sexual battery conviction and concurrent prison terms on the other convictions. On direct appeal, his judgments and sentences were affirmed by this court. See Jones v. State, 848 So.2d 338 (Fla. 5th DCA 2003).

Jones thereafter filed a motion seeking postconviction relief. The trial court summarily denied the motion and Jones appealed. Upon review, we remanded the matter to the trial court for further consideration of “Ground E”. See Jones v. State, 911 So.2d 276 (Fla. 5th DCA 2005).

More specifically, in “Ground E” of his motion, Jones argued that his trial counsel was ineffective in failing to advise him of the fact that the State had made a plea offer of less than fifteen years’ incarceration. Jones further argued that, if that offer had been communicated to him, he would have accepted it. Jones’ motion set forth a facially sufficient claim because it specifically alleged that there was an un-communieated plea offer, that he would have accepted the offer had it been communicated to him, and that the sentence he received was greater than the sentence set forth in the uncommunicated plea offer. Therefore, this court remanded the matter to the trial court with instructions either to attach additional parts of the record to justify its summary denial of this ground or to hold an evidentiary hearing.

On remand, the trial court again summarily denied “Ground E,” stating that the record reflected that Jones was present in the courtroom during the plea discussions. To support its ruling, the trial court attached portions of the trial transcript in which a possible plea offer was discussed. It is apparent from our review of this transcript that Jones was present during this exchange. Jones’ presence in the courtroom during this exchange is enough to refute his ineffective assistance of counsel claim. Compare Whitten v. State, 841 So.2d 578 (Fla. 2nd DCA 2003) (holding that defendant’s allegation in his motion that he did not become aware of an offer until just before the jury was sworn was not refuted by the record evidence, since the transcript referencing the offer was the transcript of what occurred just before the jury was sworn).

AFFIRMED.

THOMPSON and EVANDER, JJ., concur.

      . See Fla. R.Crim. P. 3.850.

      . The Florida Supreme Court has held that, if the purported ineffectiveness of counsel arises out of the rejection of a plea offer, the accused must establish three factors in order to be entitled to receive relief: (1) counsel failed to communicate a plea offer or misinformed the defendant with respect to the penalty faced; (2) the defendant would have accepted the offer but for the inadequate notice; and, (3) acceptance of the offer would have resulted in a lesser sentence. See Cottle v. State, 733 So.2d 963 (Fla.1999).


author: PER CURIAM.

text:
    Charles NORMAN, Appellant, v. Deborah NORMAN, Appellee.
    No. 1D05-5256.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.

      Nancy N. Nowlis and Corrine A. Bylund of Zisser, Robison, Brown, Nowlis & Ma-ciejewski, P.A., Jacksonville, for Appellant.
    Kathryn S. Robbie, Jacksonville, for Ap-pellee.
   PER CURIAM.

Charles Norman appeals a final order of dissolution, contending that the lower court erred in its determinations of (I) alimony, (II) equitable distribution, (III) life insurance as security for alimony and child support, (IV) apportionment of the minor child’s nonmedical expenses, and (V) attorney’s fees. We affirm Issues I and II, and reverse and remand as to Issues III, IV, and V.

The trial court erred as a matter of law by ordering the former husband to obtain two $125,000 life-insurance policies naming his former wife, appellee Deborah Norman, and his daughter as beneficiaries, without making specific findings as to the availability and cost of the policies and the impact of such cost on the husband. See, e.g., Stalnaker v. Stalnaker, 892 So.2d 561 (Fla. 1st DCA 2005); Schoditsch v. Schoditsch, 888 So.2d 709 (Fla. 1st DCA 2004); Bogin v. Bogin, 780 So.2d 971 (Fla. 1st DCA 2001). Moreover, because “the surrender value of any existing life insurance policy would be an asset for purposes of equitable distribution and any requirement to pay premiums should be taken into account in the determination of the amount of alimony,” we direct the court to revisit these two awards on remand. Sobelman v. Sobelman, 541 So.2d 1153, 1154 n. 2 (Fla.1989). We otherwise reject appellant’s arguments in Issues I and II.

The trial court also erred by ordering the former husband to pay 79 percent of the child’s noncovered medical, dental, optometric, psychological, psychiatric, and orthodontia expenses. On motion for rehearing below, the trial court acknowledged that it had failed to include the former husband’s alimony obligation to the former wife when it calculated their respective incomes for the purpose of determining their proportionate shares of child support. Although the court thereupon reduced the former husband’s child-support obligation, it failed to make a corresponding reduction in his percentage share of the child’s noncovered medical and dental expenses. On remand, the court shall reapportion the parties’ obligation to pay these expenses.

The husband fails to show the trial court abused its discretion in determining the wife’s entitlement to attorney’s fees. Courts have found no abuse of discretion in awarding fees to a wife when the trial court has awarded the principal income-producing asset to the husband and the wife’s principal income is alimony. See McAvoy v. McAvoy, 662 So.2d 744 (Fla. 5th DCA 1995); Reich v. Reich, 652 So.2d 1200 (Fla. 4th DCA 1995).

The trial court did err, however, by failing to make the requisite findings as to the amount of fees. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985); Ard v. Ard, 765 So.2d 106 (Fla. 1st DCA 2000). A dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts “are reasonable time spent and hourly rates,” is insufficient under Rowe. See Keeley v. Keeley, 899 So.2d 387, 389 (Fla. 2d DCA 2005). “The lack of findings constitutes reversible error, even if there is competent, substantial evidence to support the award.” Hamlin v. Hamlin, 722 So.2d 851, 852 (Fla. 1st DCA 1998).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further consistent proceedings.

ERVIN, WEBSTER, and HAWKES, JJ., concur.

      . We reject appellee's claim that the former husband waived this issue once the parties agreed to forego closing arguments. The omission of findings was not apparent until the court issued the final order. Moreover, the burden of proof is on the party seeking attorney's fees, and the opposing party does not waive the issue by not submitting evidence contradicting the movant. See S. Pointe Family & Children Ctr., Inc. v. First Nat’l Bank of Chicago, 783 So.2d 327 (Fla. 3d DCA 2001).


text:
    Kanecia CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0171.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Diego Puig, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kanecia Campbell appeals the revocation of her community control. The revocation was based on her failure to complete the residential substance abuse program she was still in when arrested on account of the affidavit that gave rise to the present proceedings. We reverse because the State did not prove she willfully violated any condition of the order placing her on community control (to have been followed by probation).

In October of 2004, she was given a suspended sentence of twenty-four months conditioned on successful completion of a year of community control and two years of probation that were to have followed community control. The sentencing order contained the following conditions:

13 You will enter and successfully complete the Keeton Inpatient Drug Treatment Program and any recommended aftercare.
14 You will remain incarcerated until bed space is available at Keeton.

A violation of probation report was filed on July 8, 2005, indicating that Ms. Campbell violated condition 13 because she failed to complete the Keeton program. The report stated she had entered the program on January 12, 2005, and had a projected graduation date — neither set nor confirmed by court order — of July 12, 2005.

The report indicated disciplinary problems for failing to follow program rules, and that she had tested positive for alcohol on June 8, 2005, in violation of Keeton’s policy; for which she was allegedly discharged from Keeton on June 17, 2005, without successfully completing the program. The violation affidavit alleges that the probation officer received a letter from the Keeton program indicating that the appellant had been discharged from the program for consuming alcohol.

But she was arrested for the alleged violation of probation on July 15, 2005, while still attending the Keeton program. She filed a motion to dismiss “the Violation of Probations” on grounds that the lone violation alleged was that she was discharged from the Keeton program, asserting that she was under supervision until September 17, 2007, and still had time to complete the program, and that she desired to complete the program. At the hearing on December 6, 2005, the trial court denied the motion to dismiss and heard evidence on the allegations in the violation affidavit.

Appellant’s probation officer was the only witness at the hearing. Appellant’s counsel objected to most of the probation officer’s testimony as hearsay, but the trial court allowed the testimony over objection. The probation officer testified that she was “discharged” from the program on June 17, 2005, but that she actually remained in the program until she was arrested at Keeton on July 15, 2005 (after her expected graduation date). He also testified that, according to information received from Keeton, the appellant consumed alcohol on June 8, 2005. He testified that she remained at Keeton at the discretion of Keeton’s director because “they can extend an individual for up to thirty days and that’s the reason why she exceeded that six month period.” He testified that, to his knowledge, she had never tested positive for drugs at Keeton and that he was not involved in testing her for alcohol or when she allegedly consumed alcohol.

While a judge has broad discretionary power to revoke probation, see Bernhardt v. State, 288 So.2d 490, 495 (Fla.1974), or community control, the sentencing judge must first find a willful and substantial violation of lawfully imposed conditions of probation or community control. See State v. Carter, 835 So.2d 259, 261 (Fla.2002). The State has the burden to “prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). Courts have held that “evidence of the failure to complete a counseling program is insufficient to establish a willful and substantial violation of proba tion if the condition in question does not specify a time for completion.” Quintero v. State, 902 So.2d 236, 237 (Fla. 2d DCA 2005). See also Yates v. State, 909 So.2d 974, 975 (Fla. 2d DCA 2005); Wilkerson v. State, 884 So.2d 153, 153-54 (Fla. 2d DCA 2004); O’Neal v. State, 801 So.2d 280, 280-81 (Fla. 4th DCA 2001); Jones v. State, 744 So.2d 537, 538 (Fla. 2d DCA 1999).

In Jones, the appellant was ordered as a condition of probation to “enter and successfully complete residential treatment program (DAY TOP).” Jones, 744 So.2d at 538. He testified that he needed treatment and wanted to continue treatment at Day Top or another program. The court ruled:

A violation of community control which triggers revocation must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence. Although appellant was discharged from the Day Top drug program, he expressed a willingness to continue in the program or complete some other form of drug treatment. The community control order did not specify the period within which appellant was to complete the program or how many chances he would have to obtain success. Since the order was not specific and appellant has expressed a willingness to complete some form of drug treatment, we conclude that the trial court abused its discretion in revoking appellant’s community control.

Id. (citations omitted). See also O’Neal, 801 So.2d at 280 (“It is an abuse of discretion to find a willful and substantial violation of probation where a defendant has expressed a willingness to complete or continue with a program and where the order of probation did not specify a date certain for compliance.”).

In the present case, the condition at issue reads: “You will enter and successfully complete the Keeton Inpatient Drug Treatment Program and any recommended aftercare.” The appellant was arrested after failing to graduate on her expected graduation date, although she was still attending the program. Even if the probation officer’s testimony had been competent, this testimony could not have proven a violation of probation because the appellant was still attending the substance abuse program, and sufficient time remained for her to complete it.

If, as the probation officer testified, Kee-ton allowed her to extend the program she was in, she could presumably have completed the program during the extension. She also had sufficient time to attend another, similar treatment program from start to finish. She expressed a willingness to complete the required program in her motion to dismiss and the condition in the order did not have a deadline for fulfilling the condition. When allegedly in violation, she had sufficient time to complete a program. Therefore, as in O’Neal and Jones, the judge abused his discretion by denying the motion to dismiss and revoking the order placing her on community control to be followed by probation based on a putative breach of the condition requiring completion of the program.

Reversed.

KAHN, BENTON, and LEWIS, JJ., concur.

       While hearsay evidence may be admitted in a revocation proceeding, see Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997), probation may not be revoked solely based on hearsay evidence. See id.; see also Stewart v. State, 926 So.2d 413, 415 (Fla. 1st DCA 2006); Meade v. State, 799 So.2d 430, 433 (Fla. 1st DCA 2001). There must be some evidence to support the revocation of probation that would be admissible at a criminal trial. See Gammon v. State, 778 So.2d 390, 391-92 (Fla. 2d DCA 2001); Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998). The evidence that would be admissible at trial must be evidence relating to the defendant's misconduct leading to the violation of probation. See Combs v. State, 351 So.2d 1103, 1103 (Fla. 4th DCA 1977) (“The rule requiring more than hearsay to establish a violation of probation requires other evidence of the defendant's misconduct, not just other evidence.”); see also Hall v. State, 744 So.2d 517, 521 (Fla. 3d DCA 1999) (same). We need not reach the issue in this case because the evidence presented, hearsay or not, does not support a willful violation of probation.


text:
    Douglas W. CARLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4235.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.

      Mark R. Miller and Alison A. Tedrick of Ford, Miller & Wainer, P.A., Jacksonville, for Appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Douglas W. Carlin, appeals the trial court’s order on annual review of appellant’s civil commitment status pursuant to the Sexually Violent Predators Act (formerly known as the Jimmy Ryce Act). In its order, the trial court acknowledged the commendable progress appellant has made while in treatment, but concluded that because it lacked the authority to release appellant from confinement under supervision, appellant should remain in secure confinement until a determination is made that it would be safe for him to be at large, as provided in section 394.917(2), Florida Statutes (2002). Appellant contends: (1) the trial court erred in interpreting the Sexually Violent Predators Act (the Act) as precluding less restrictive alternatives to total confinement in long-term sex-offender treatment; (2) the trial court erred in failing to interpret and apply the Act so as to require the Department of Children and Family Services (the Department) to provide supervision of appellant in a non-secure setting until he is determined to be safe to be at large; and (3) the trial court erred in finding that the state proved appellant is likely to engage in acts of sexual violence if released.

While the appeal was pending, appellant filed a notice of a change in his commitment status resulting from a stipulation between him and the state, which the trial court accepted and approved. Pursuant to the parties’ stipulation, the order of civil commitment is held in abeyance for not less than five years to allow appellant time to comply successfully with each of the requirements set forth in the stipulation. Upon appellant’s successful completion of the terms and conditions of the stipulation following the five-year period, the state agreed to ask the court to vacate the order of commitment and to dismiss the underlying civil commitment order.

The stipulation includes the following pertinent provisions:

17) The Respondent [appellant] hereby waives any and all rights he may have to contest the State’s enforcement of the Order of Commitment pursuant to this Stipulation. This waiver includes, but is not limited to any jurisdictional arguments that might otherwise be applicable to this action.
19) The parties agree and understand that the contents of this agreement apply only to the action now pending, and any subsequent amendments thereto. That is, should the Respondent at some future time engage in activity that once again subjects him to the statutory provisions contained in Section 394.910 et seq. Florida Statutes, (Involuntary Civil Commitment of Sexually Violent Predators Act) the terms and conditions of this agreement shall not be binding upon the State, nor shall this agreement limit the ability of the Petitioner to initiate any legal action (civil or criminal) against the Respondent in the future.

The state contends that the parties’ stipulation afforded appellant a less restrictive alternative to secure confinement, thereby mooting the first two issues as to him. As to the third issue challenging the sufficiency of the state’s case to meet the standard of clear and convincing proof, the state maintains the issue will become moot if appellant completes the conditions of the stipulation. Arguing the appeal cannot afford meaningful relief to appellant, the state contends the appeal should be dismissed. We agree.

Whether a case is moot is a question of law subject to de novo review. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003). “An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.” Godwin v. State, 593 So.2d 211, 212 (Fla.1992). See also A.G. v. Dep’t of Children & Family Servs., 932 So.2d 311, 313 (Fla. 2d DCA 2006). “It is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue.” Montgomery v. Dep’t of Health & Rehab. Servs., 468 So.2d 1014, 1016-17 (Fla. 1st DCA 1985). “A case becomes moot, for purposes of appeal, where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief.” Id. at 1016. “A moot case generally will be dismissed.” Godwin, 593 So.2d at 212.

We conclude that the terms of the parties’ stipulation have caused a change of circumstances that make it impossible for this court to provide appellant any effectual relief. As a result, we are constrained to dismiss the appeal as moot. In making this determination, we reject appellant’s argument that the case falls within the exceptions to dismissal “when the questions raised are of great public importance or are likely to recur.” Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984).

DISMISSED as moot.

ERVIN, BENTON, and BROWNING, JJ., concur.

      . §§ 394.910-.931, Fla. Stat. (2002).

      . The Florida Civil Commitment Center (FCCC) Review Board Report dated February 3,2005, contained a staff recommendation that appellant be released under supervision and with certain conditions that, if not met, would result in his return to state custody.


text:
    Tyrone M. HOWARD, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-0580.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.

      Tyrone M. Howard, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

By a petition for writ of certiorari, petitioner, Tyrone Howard, a prisoner in the state correctional system, seeks review of a final order entered by the circuit court. Because we conclude that the circuit court’s order constituted a departure from the essential requirements of law, we grant the petition.

The Florida Parole Commission (“FPC”) declined to set an effective parole release date (“EPRD”) for petitioner, citing his criminal history, unsatisfactory conduct while in prison, and a psychological evaluation. To facilitate judicial review, FPC must articulate with specificity the reasons for its decision and provide the information from the complete official record in the inmate’s file that supports those reasons. Williams v. Fla. Parole Comm’n, 625 So.2d 926, 939 (Fla. 1st DCA 1993) receded from on other grounds, Sheley v. Fla. Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997). A circuit court is required to review the record considered by FPC before entering its final order. See Myers v. Fla. Parole & Prob. Comm’n, 705 So.2d 1000 (Fla. 4th DCA 1998); McCorvey v. Fla. Parole Comm’n, 625 So.2d 1296 (Fla. 1st DCA 1993). Petitioner filed a petition for writ of habeas corpus in the circuit court to challenge FPC’s decision. FPC filed a response and cited petitioner’s psychological evaluation, but FPC did not provide a copy of that evaluation to the circuit court for review. Petitioner filed a reply and argued that the circuit court was required to review the psychological evaluation. The circuit court denied the petition, and petitioner sought certiorari review in this Court.

“The scope of our review on such a petition for certiorari is limited to determining whether the trial court (1) afforded due process and (2) observed the essential requirements of law.” Randall v. Fla. Dep’t of Law Enforcement, 791 So.2d 1238, 1240 (Fla. 1st DCA 2001) (citing Sheley, 703 So.2d at 1202, approved, 720 So.2d 216 (Fla.1998)). A ruling constitutes a departure from “the essential requirements of law” when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 95-96 (Fla.1983).

FPC has argued that its summary of the psychological evaluation was sufficient and that petitioner did not challenge that summary as inaccurate. In Williams, this Court held that a circuit court reviewing an FPC decision for an abuse of discretion must determine from the record whether FPC deviated from legal requirements or otherwise acted improperly in reaching its decision. This Court stated:

Based on the record before us, it appears that the Commission did not identify the portions of the record that support some of its reasons, and that the trial court did not have material portions of the complete official file in Williams’s case that were or should have been considered by the Commission in deferring Williams’s EPRD and denying parole for the reasons stated.

Williams, 625 So.2d at 939. In order to determine whether FPC acted properly, “the trial court should have had available for review those portions of the inmate’s file that are relevant and material to the reasons cited by the Commission’s order .... ” Id. In Swain v. Fla. Parole Comm’n, 776 So.2d 1079 (Fla. 4th DCA 2001), the court similarly viewed Williams as creating a requirement that the circuit court must review the material portions of an inmate’s file before determining whether FPC abused its discretion. Here, the circuit court was required to review the psychological evaluation considered by FPC to determine whether FPC abused its discretion in declining to authorize an EPRD. See Welsch v. State, 823 So.2d 310 (Fla. 2d DCA 2002) (stating that a circuit court is required to review the record, including an inmate’s psychological evaluation, considered by FPC before entering its final order).

Accordingly, we grant the petition for writ of certiorari, quash the circuit court’s order, and remand for further proceedings.

PETITION GRANTED.

KAHN, BENTON, and LEWIS, JJ., concur.


author: ALLEN, J.

text:
    John BANDORF, Petitioner, v. VOLUSIA COUNTY DEPARTMENT OF CORRECTIONS and County of Volusia, Respondents.
    No. 1D06-0579.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.

      Mark L. Zientz and Andrea Cox of Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.
    Nancye R. Jones, Assistant County Attorney, Deland, for Respondents.
   ALLEN, J.

In his petition for a writ of certiorari, the claimant in a workers’ compensation case seeks review of a discovery order by which the judge of compensation claims directed that copies of the petitioner/claimant’s psychiatric records must be provided to the respondents/employer/carrier. Because these records are privileged under clearly established principles of law, and because their production would cause irreparable harm which could not be remedied upon appeal from the final order in this case, we grant the petition and quash the order.

The petitioner filed a petition for workers’ compensation benefits, alleging that he was injured as a result of repetitive exposure to mold, toxic substances, and chemicals at his workplace, which he claims is a “sick building.” He requested authorization and payment for the evaluation, care, and treatment of hypersensitivity, immune deficiencies, fatigue, and other “neurological symptoms.” He also requested neuro-diagnostic studies to “determine, better diagnose, and treat the neurological deficits caused by sick building exposure.” The respondents controverted the claim and sought to subpoena records from two psychiatrists who had treated the petitioner. The petitioner objected to the requested production of the records, arguing that they were protected from disclosure by the psychotherapist-patient privilege codified in section 90.503, Florida Statutes. Theorizing that some of the symptoms of which the petitioner complained- — specifically, “fatigue and neurological symptoms” — ■ might be the product of a mental or emotional condition, or of medicines administered for treatment of a mental or emotional condition, the respondents countered that the privilege did not apply because the petitioner was relying upon his mental or emotional condition as an element of his workers’ compensation claim. Agreeing with the respondents that the privilege did not apply, the judge of compensation claims entered the order under review.

Section 90.503(2), Florida Statutes, provides that the patient of a psychotherapist has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition. Material to the present case, section 90.503(4)(c), provides an exception to this privilege for “communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense.... ”

Although the exception to the privilege applies when a plaintiff or claimant asserts that mental anguish or emotional distress has resulted from the defendant’s negligence (in the case of a plaintiff in a negligence action) or from an industrial injury (in the case of a claimant in a workers’ compensation case), see, e.g., Nelson v. Womble, 657 So.2d 1221 (Fla. 5th DCA 1995), Scheff v. Mayo, 645 So.2d 181 (Fla. 3d DCA 1994), Sykes v. St. Andrews School, 619 So.2d 467 (Fla. 4th DCA 1993), the exception does not apply merely because symptoms the plaintiff or claimant associates with a physical injury are of a type which might arguably be associated with some separate mental or emotional condition. Thus, the petitioner/plaintiff in Partner-Brown v. Bornstein, 734 So.2d 555 (Fla. 5th DCA 1999), did not rely upon her mental or emotional condition and thereby make the exception applicable when she alleged in her medical malpractice complaint that her physical injuries had resulted in the loss of the “enjoyment of life.” In rejecting the respondent/defendant’s argument that the petitioner had relied upon her mental or emotional condition in pleading her case in this manner, the court observed, “[i]t should be apparent that physical pain and suffering, absent mental anguish, can impair the enjoyment of life.” Id. at 556-57.

Likewise, the petitioner in the present case did not rely upon his mental or emotional condition and thereby make the exception to the privilege applicable when he claimed that the physical injuries he suffered from the sick building in which he worked resulted in fatigue and neurological symptoms. The respondents effectively concede this point by their argument that it is “an established medical fact, as well as common knowledge,” that fatigue and neurological symptoms can be “caused by a number of physical, as well as, mental conditions.”

Although the psychiatric records might contain information that would be relevant for impeachment purposes or in connection with a defense that the fatigue and neurological symptoms are the result of some mental or emotional condition unrelated to the injuries of which the petitioner complains, the section 90.503(4)(c) exception applies only when the patient—rather than some party who opposes the patient in litigation—places his mental or emotional condition in issue. See, e.g., Garbacik v. Wal-Mart Transp. LLC, 932 So.2d 500 (Fla. 5th DCA 2006); Palm Beach County Sch. Bd. v. Morrison, 621 So.2d 464 (Fla. 4th DCA 1993). Because the patient in the present litigation, the petitioner, has not placed his mental or emotional condition in issue, the section 90.503(4)(c) exception to the privilege does not apply.

The petition is accordingly granted and the discovery order is quashed.

LEWIS and HAWKES, JJ., concur.


text:
    Maynor E. MONNAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1923.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.

      Maynor E. Monnar, pro se, Appellant.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings consistent with this opinion.

In October 1997, appellant was convicted of one count of aggravated battery on a law enforcement officer and four counts of resisting an officer with violence and sentenced to 15 years and 18 days in prison. On appeal, we reversed three of the four convictions for resisting an officer with violence because all four charges arose out of a single criminal episode. Monnar v. State, 752 So.2d 1252 (Fla. 1st DCA 2000). Appellant was resentenced in September 2000 to 88 months in prison, with the trial court assessing 40 points on appellant’s guidelines scoresheet for severe victim injury-

Appellant contends that the jury never found severe victim injury and, thus, the trial court’s assessment of victim injury points on his guidelines scoresheet violated his Sixth Amendment right, as explained in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to have all facts increasing his sentence beyond the statutory maximum found by a jury. He further alleges that without the inclusion of the victim injury points, his maximum guidelines sentence would be 37 months in prison.

Pursuant to Apprendi, the facts supporting the imposition of a sentence beyond the statutory maximum must be found beyond a reasonable doubt by a jury or admitted by the defendant. As clarified in Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the statutory maximum is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jm'y verdict or admitted by the defendant” (emphasis in original). Therefore, under Apprendi and Blakely, appellant is entitled to a jury determination of severe victim injury when the inclusion of the points increases his sentence beyond the guidelines maximum. See Behl v. State, 898 So.2d 217 (Fla. 2d DCA 2005) (applying the ruling in Apprendi to a trial court’s assessment of victim injury points). Thus, the trial court’s finding of severe victim injury, which supported the increase in appellant’s guidelines sentence, violated appellant’s Sixth Amendment rights.

On appeal, the state asserts that Apprendi does not apply to appellant’s case because his convictions became final before Apprendi. However, in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), we held that Apprendi applies to cases, such as this one, where the defendant is resentenced after Apprendi was decided. But see Barron v. State, 931 So.2d 929 (Fla. 2d DCA 2006) (certifying conflict with Isaac); Galindez v. State, 910 So.2d 284 (Fla. 3d DCA) (holding Apprendi did not apply to convictions rendered prior to its issuance notwithstanding future resen-tencing proceedings post-Blakely, and certifying conflict with Isaac), review pending, SC05-1341 (Fla. filed July 29, 2005); Garcia v. State, 914 So.2d 29 (Fla. 4th DCA 2005) (certifying conflict with Isaac); Langford v. State, 929 So.2d 598 (Fla. 5th DCA 2006) (certifying conflict with Isaac). Furthermore, even though appellant was resentenced prior to Blakely, the holding of Blakely applies to appellant’s case because Blakely is a clarification of Apprendi. See Isaac, 911 So.2d at 815; Morrow v. State, 31 Fla. L. Weekly D466, - So.2d -, 2006 WL 317016 (Fla. 1st DCA Feb. 13, 2006). Because Apprendi and Blakely apply to appellant’s case, we reverse the summary denial of appellant’s motion and remand to the trial court with directions that it either resentence appellant or refute appellant’s claim with record attachments.

REVERSED and REMANDED, with directions.

WEBSTER, BENTON, and VAN NORTWICK, JJ„ concur.


text:
    Steven M. FOY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2260.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.

      Bernard F. Daley, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because there is insufficient information in the record to refute the appellant’s second and third claims, we reverse. We affirm the remainder of the appellant’s claims without further discussion.

On March 21, 2000, the appellant was convicted of manslaughter by boating under the influence and culpable negligence and sentenced to ten years’ imprisonment as a habitual felony offender followed by twenty years’ probation on count one and to time served on count two. In a timely rule 3.850 motion, the appellant raised six claims of ineffective assistance of counsel. In ground two, the appellant alleged that his counsel was ineffective for failing to move to suppress the statements taken from the appellant on December 13 and 14. In ground three, the appellant alleged that his counsel was ineffective for failing to object to the withdrawal of the appellant’s blood because the police did not have probable cause to believe that the appellant was operating the boat when the blood withdrawal was made. The trial court summarily denied both of these claims. Because the trial court failed to attach sufficient record portions to support its summary denial, we reverse the denial of these claims and remand for an evidentiary hearing or further attachment of portions of the record to conclusively refute the appellant’s claims. Cobb v. State, 582 So.2d 81 (Fla. 1st DCA 1991).

AFFIRMED in part, REVERSED in part, and REMANDED.

KAHN, BENTON, and LEWIS, JJ., concur.


author: KLEIN, J.

text:
    Karly I. ORSI, Petitioner, v. Roberto R. BOLLELLA, Respondent.
    No. 4D06-3444.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2006.

      Roslyn L. Stevenson of Roslyn L. Stevenson, P.A., Hollywood, for petitioner.
    Robert M. Lewis and Philip L. Schwartz of Law Offices of Philip L. Schwartz, P.A., Boca Raton, for respondent.
   KLEIN, J.

This ease arises out of a Massachusetts action which was resolved by a court order adopting a stipulation establishing child support, custody and visitation. It appears that the father and mother later moved to Florida in 2002, but the mother now wishes to move with the child to another state. The father filed this action in Florida to prevent the mother from removing the child from Florida, and the mother argues in this petition for writ of prohibition that the trial court does not have subject matter jurisdiction. We deny the petition.

The basis of the mother’s argument that the trial court lacks jurisdiction to enforce the Massachusetts court order is that the father has not registered the Massachusetts court order in Florida. The mother relies on a provision of the Uniform Child Custody Jurisdiction and Enforcement Act, section 61.528(1), Florida Statutes (2006), which provides:

A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the circuit court of the county where the petitioner or respondent resides or where a simultaneous request for enforcement is sought.

The mother moved to dismiss the father’s action in the trial court because he had not previously registered the Massachusetts order. The father responded by pointing out that he had attached a copy of the Massachusetts court order to his initial pleading in this case, and that registration was unnecessary in this case. He asserts that registration is irrelevant because the relief he is seeking is not enforcement, but rather that Florida, the home state for several years, take jurisdiction and prohibit relocation of the child.

The trial court deferred ruling on the mother’s motion to dismiss pending an evi-dentiary hearing on jurisdiction, but before the hearing took place the mother filed this petition for writ of prohibition asserting that the trial court lacked jurisdiction to proceed. We conclude that, under sections 61.514, 61.515 and 61.516, the trial court had jurisdiction to determine if Florida has jurisdiction under the UCCJEA. Benitez v. Konfino, 624 So.2d 861 (Fla. 5th DCA 1993). We accordingly deny the petition.

STONE and TAYLOR, JJ., concur.


author: WOLF, J.

text:
    Matthew D. CHRIST, Former Husband, Appellant, v. Kathryn K. CHRIST, Former Wife, Appellee.
    No. 1D06-1343.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Matthew D. Christ, pro se, Appellant.
    No appearance for Appellee.
   WOLF, J.

This is an appeal from an order of the circuit court adopting and ratifying the Second Amended Order of the general magistrate and denying the husband’s supplemental petition for modification of visitation. Appellant, former husband, raises a number of issues on appeal, one of which we find dispositive: whether the trial court erred in denying the former husband’s objection to the order of referral to the general master.

A referral to the general master requires the consent of all parties; and without this consent, the trial court lacks discretion to refer the matter to a general master. Swezy v. Bart-Swezy, 866 So.2d 1248 (Fla. 4th DCA 2004).

Florida Family Law Rule 12.490(b) provides in part:

(1) No matter shall be heard by a general master without an appropriate order of reference and the consent to the referral of all parties. Consent, as defined in this rule, to a specific referral, once given, cannot be withdrawn without good cause shown before the hearing on the merits of the matter referred. Consent may be express or may be implied in accordance with the requirements of this rule.
(A) A written objection to the referral to a general master must be filed within 10 days of the service of the order of referral.

In the instant case, the former husband’s objection to referral was timely filed and acknowledged by the general master who relinquished jurisdiction back to the trial court pursuant to rule 12.490(b). However, upon receiving notice of the timely objection, the trial court denied the former husband’s objection and sent the matter back to the general master. The rule is clearly stated. Where a party withholds consent and files a timely objection to the referral to a magistrate, that party is entitled to further proceedings in the circuit court. Swezy, 866 So.2d at 1249. Although this issue may be raised through a writ of mandamus or a writ of prohibition, the matter is also properly reviewed on appeal of a final order adopting the general master’s recommendations. Young v. Young, 816 So.2d 1267 (Fla. 3d DCA 2002). Thus, we are constrained to reverse the trial court’s order adopting the Second Amended Report and Recommendation and denying the former husband’s Supplemental Petition for Modification of Visitation.

PADOVANO and THOMAS, JJ., concur.


author: BROWNING, C.J.

text:
    LEAVITT COMMUNICATIONS, INC., Appellant, v. QUALITY COMMUNICATIONS OF AMERICA, INC., and Darlene Foret, Appellees.
    No. 1D05-4426.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.

      Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for Appellant.
    C. Ryan Maloney and Gardner F. Davis of Foley & Lardner LLP, Jacksonville, for Appellees.
   BROWNING, C.J.

Appellant Leavitt Communications (Leavitt) seeks review of a summary judgment entered for Appellee Darlene Foret (Foret). For the reasons discussed below, we affirm the summary judgment in all respects, except as to the portions of Counts IV and V addressing an $11,758.48 check which the bank refused to honor. The facts are as follows.

Leavitt sued Foret by serving a series of amended complaints that culminated with a third amended complaint containing three counts as to Foret (Counts II, IV, and V) alleging various theories of recovery against Foret. Leavitt filed its original complaint on March 12, 2002, filed its first amended complaint on July 1, 2003; filed its second amended complaint on June 14, 2004; and filed its third amended complaint on December 6, 2004.

Each time, the trial court entered an order authorizing the amendments to Leavitt’s complaint; the orders provided that the amended complaint “shall be deemed filed as of the date of this order.” Each amended complaint contained a count alleging recovery against Foret of the $11,758.48 check, and also contained a count seeking recovery from Foret on an alleged personal guarantee of the $11,758.48 check.

On February 22, 2005, the trial court rendered an order granting summary judgment on all counts against Foret on the basis that such counts were all barred by the statute of limitations. By this action, the trial court erred as to the $11,758.48 check.

A cause of action contained in an amendment to a pleading is considered filed on the date of the original complaint if it “arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” Fla. R. Civ. P. 1.190(c). Claims also relate back to the filing of a motion to amend which contains the proposed amended complaint. Totura & Co. v. Williams, 754 So.2d 671 (Fla.2000). This is true even when the statute of limitation has run in the interim. See Holley v. Innovative Tech. of Destin, Inc., 803 So.2d 749 (Fla. 1st DCA 2001). Thus, when considering an amended complaint, it is incumbent upon a trial court, before dismissing a claim as barred by the statute of limitations, to determine when each claim was filed as well as the statute’s expiration date.

When these rules are applied here, the trial court erred by entering summary judgment on Count IV and Count V of the complaint as they relate to the $11,758.48 check. Count IV raises claims as to the $11,758.48 cheek and a $13,516.96 check; and Count V raises claims that Foret personally guaranteed the payment of both checks. For both checks the limitation period began to run on June 27, 1999, and expired on June 27, 2004. See § 95.11(2)(b), Fla. Stat. (1999) (providing a limitation period of five years). The claims based on the $11,758.48 check were asserted in each complaint filed by Leavitt and, thus, relate back to the filing date of the original complaint. However, the claims on the $13,516.96 check are untimely because they were first raised on December 6, 2004, by Leavitt’s third amended complaint and are barred by section 95.11(2)(b), Florida Statutes.

Accordingly, we REVERSE as to the $11,758.48 check and Foret’s personal liability for such check, AFFIRM as to all other issues, and REMAND for proceedings consistent with this opinion.

ERVIN and BENTON, JJ., concur.


author: THOMAS, J.

text:
    Robert DEUTSCH, Appellant, v. HERITAGE AUTOMOTIVE ENTERPRISES, Appellee.
    No. 1D05-669.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.

      Mark D. Dickstein, Hollywood; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
    No appearance for Appellee.
   THOMAS, J.

In this workers’ compensation appeal, Claimant appeals the Judge of Compensation Claims’ (JCC) order finding Claimant’s injury not compensable. We reverse.

While working as a used car salesman, Claimant saw a vehicle pull in front of the dealership where he was working and watched as a female exited the vehicle, walked onto his employer’s premises, and took “some property.” Claimant testified that he initially was unsure what she had taken, but he instinctively pursued her on foot as she jumped back in the vehicle. In his pursuit of the perpetrator, Claimant left Employer’s property, crossed the sidewalk, and caught up to the vehicle. Once there, he noticed that the item stolen from the lot was actually a $15 “bubble machine” that Claimant had purchased in an attempt to attract customers to the business. Claimant proceeded to lunge inside the passenger window of the vehicle in an attempt to grab the bubble machine. At that moment, the driver sped away, dragging Claimant down the street. Claimant was eventually thrown underneath the vehicle and run over. Due to the accident, Claimant sustained multiple injuries and has been unable to return to work.

Following a hearing, the JCC determined that Claimant’s injuries were caused by the acts of pursuing the thief and reaching into the open window of the vehicle, both of which happened off of Employer’s property. The JCC held that once Claimant crossed the right-of-way of Employer’s property, he was no longer in the course of his employment; therefore, Claimant was not eligible for workers’ compensation benefits. We reverse.

The general rule is that a claimant’s injury must arise out of and in the course of his employment to be compensable. Swartz v. McDonald’s Corp., 788 So.2d 937 (Fla.2001). However, we hold that even if Claimant’s injuries here did not qualify under this general definition, as the JCC found, Claimant’s injuries still fall within a statutory exception and are thus compensable. Section 440.092(3), Florida Statutes (2003), provides that an employee who is injured while deviating from the course and scope of his employment, including leaving the employer’s premises, is eligible for workers’ compensation benefits if the deviation is in response to an emergency and designed to save life or property. Injuries are compensable if the employment places employees in a position that requires them, by ordinary standards of humanity, to respond to emergencies. D.L. Cullifer & Son, Inc. v. Martinez, 572 So.2d 1360, 1362 (Fla.1990).

In Southern Wine & Spirits, Inc. v. Gonzalez, 429 So.2d 1294 (Fla. 1st DCA 1983), this court held that if the emergency deviation is designed to save life or property in which the employer has an interest, the injury must be considered one which arises out of and in the course and scope of his employment and should be compensa-ble. However, there is nothing in Gonzalez or in the language of section 440.092(3), Florida Statutes, to suggest that the employer must have an interest in the life or property being saved in order for the injury to be compensable. Under a plain reading of the statute, all that is required in order for a deviation to be compensable is: 1) the deviation is an emergency; and 2) the emergency is designed to save life or property. Because both of these prongs are met here, we reverse the JCC’s order and hold that the accident is com-pensable. Claimant was responding to an emergency, and his response was designed to save property. Nothing in section 440.092(3), Florida Statutes (2003), precludes Claimant from receiving benefits simply because the property he was saving turned out to be his own.

Therefore, we reverse the JCC’s order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ERVIN, and WEBSTER, JJ., concur.


text:
    Alfonso WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3309.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Afonso Williams, pro se, Appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Aissistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying as untimely his postconviction motions filed pursuant to Florida Rule of Criminal Procedure 3.850. Mandate issued and the appellant’s conviction and sentence became final on March 9, 2004. The appellant’s time to file a rule 3.850 motion expired two years later on March 9, 2006. See Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988). Thus, the appellant’s first rule 3.850 motion filed on March 8, 2006, is timely. However, his second rule 3.850 motion filed on March 20, 2006, is untimely. We, therefore, affirm the denial of the March 20, 2006, motion, but reverse and remand for the trial court to address the merits of the appellant’s claims raised in his rule 3.850 motion filed on March 8, 2006.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Donald Craig GORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5797.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Donald Craig Gore, pro se, Petitioner.
    Charlie Crist, Attorney General, and Man R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Inasmuch as the trial judge failed to rule on petitioner’s motion for disqualification within the 30 day period established by Florida Rule of Judicial Administration 2.160(j), we grant the petition for writ of prohibition. The order denying petitioner’s motion for postconviction relief, which was rendered after the filing of the motion for disqualification, is hereby vacated. See Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000). On remand, a new judge shall be assigned, with directions to consider the motion for postconviction relief de novo.

KAHN, BENTON, and LEWIS, JJ., concur.


text:
    Leroy LYLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1518.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Leroy Lyles, pro se, Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the order denying motion for postconviction relief rendered on October 20, 2005, in Duval County Circuit Court case number 16-1997-CF-7451-AXXX. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    Henry Lester PETERSON, Petitioner, v. The BAY COUNTY SHERIFF’S OFFICE, et al., Respondents.
    No. 1D06-2765.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Henry Lester Peterson, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of mandamus is denied. See Moore v. Correctional Medical Svcs., 817 So.2d 963 (Fla. 1st DCA 2002); Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    John H. YOUNG, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D06-1644, 4D06-2885.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    John H. Young, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant seeks review of the trial court’s order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The issue he has raised — that the wrong score-sheet was used at resentencing' — -is identical to one he raised in a prior rule 3.800(a) motion, which was denied on the merits and affirmed without opinion by this court. Because the procedural bar would result in a manifest injustice, we reverse and remand.

In 1998, the appellant was sentenced to forty-five years in prison after violating probation on an original conviction of second degree murder. He claims that the wrong scoresheet was used to resentence him on his probation violation. Specifically, he claims he was resentenced in the permitted sentencing range, which was non-existent at the time of his initial offense in 1986, and that the maximum sentence he could have received under the correct scoresheet was forty years. Thus, his challenge is that his scoresheet was incorrect, not that his sentence was illegal. The lower court denied the motion as successive, stating that appellant had been before the court on the very same issue, and that the court’s previous rejection of appellant’s claim had been subject to appellate review. See Young v. State, 901 So.2d 139 (Fla. 4th DCA 2005). Use of the wrong scoresheet, however, is a valid ground for relief under Rule 3.800(a) as it is akin to an incorrect scoresheet calculation. See Parks v. State, 697 So.2d 964 (Fla. 1st DCA 1997). Here, it appears that the wrong scoresheet was used, and that the sentence imposed was beyond the recommended sentence range of the correct scoresheet. The appellant is entitled to be resentenced under the correct score-sheet.

We recognize the law of the case doctrine; however, we rely on the equally known principle that appellate courts have the power to reconsider and correct erroneous rulings where reliance on a previous decision would result in manifest injustice. See Zolache v. State, 687 So.2d 298 (Fla. 4th DCA 1997). Such an exceptional circumstance appears to exist here, where use of the wrong scoresheet resulted in an unauthorized departure from the sentencing guidelines in effect at the time of the original offense.

The prior case was affirmed per curiam. The state’s response indicates that the original and resentencing scoresheets were not included in the record. Therefore, the court could have affirmed because of the failure of the record to reflect the contended eiTor. That defect has been cured in this appeal. In accordance with the foregoing, we reverse and remand for further proceedings on the claim.

In a separate appeal (case number 06-2885), appellant seeks review of the trial court’s order prohibiting him from filing any further pro se pleadings, motions or petitions. That order is based, in part, on appellant’s repeated filing of the above 3.800(a) claim, which we believe to be meritorious. We sua sponte consolidate the two appeals and direct that on remand the trial court should revisit the matter of appellant’s further pro se filings.

WARNER, GROSS and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    C. Christopher JANIEN, as Personal Representative of the Estate of Frances M. Janien, Appellant, v. Cedric J. JANIEN, Appellee.
    Nos. 4D06-968, 4D06-1719.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Edward Downey of Downey & Downey, P.A., Palm Beach Gardens, for appellant.
    James G. Pressly, Jr. of Pressly & Pressly, P.A. West Palm Beach, for appel-lee.
   GROSS, J.

The issue in this case is whether a decedent created an “elective share trust” within the meaning of section 732.2025(2), Florida Statutes (2005). We hold that the instruments here at issue did not create an elective share trust and affirm.

Frances and Cedric Janien purchased a home as tenants by the entirety in North Chatham, Massachusetts in 1971. In 1973, Cedric executed a quit claim deed transferring to his wife, Frances, “all right, title, and interest” in the Massachusetts home.

Frances executed a Florida will in 1982. In Article IV, she devised a “life estate” in the Massachusetts property to Cedric, as follows:

I give a life estate in my residences at Boca Raton, Florida and North Chat-ham, Massachusetts to my husband, Ce-driC JaNien, if he survives me. My husband shall be entitled to all the income from the property during his lifetime, shall be responsible for all maintenance charges and taxes assessed against the property during his lifetime, and may not sell his life estate to any third party.

On December 8, 1989, Frances executed two documents that altered her estate plan. First, Frances created a nominee real estate trust entitled the “North Chatham Realty Nominee Realty Trust.” She transferred the Massachusetts property into the nominee trust by executing a quit claim deed. The 2.2 acre property is the only asset of the trust. Under the nominee trust, Frances was the sole beneficiary and her son, Christopher Janien, was the trustee. The nominee trust stated that it was to be governed according to Massachusetts law.

Second, also on December 8, 1989, Frances executed a Massachusetts will. The 1989 will recognized the transfer of the Massachusetts home into the nominee trust in a bequest that acknowledged the Massachusetts home to be a trust asset. The 1989 will stated:

ARTICLE SECOND: If my husband, Cedric Janien, survives me:
A. I devise and bequeath my beneficial interest in the North Chatham Realty Trust, together with all furniture, fixtures, antiques and other items of personal property in said residence, to my Trustee, with the right in my husband to exclusively live in and occupy such residence for the period of his life, and provided that he is financially able to do so, he shall be responsible for all maintenance charges and taxes assessed against the residence during his lifetime. If he does not have the financial ability to pay such expenses and taxes, them my Trustee is authorized and is directed to mortgage the premises for the purpose of paying such maintenance charges and taxes.

Finally, on January 23, 1997, Frances executed a second Florida will. In Article Two, the Florida will contains language identical to that of Article Second, A, of the 1989 will quoted above.

After Frances died on November 8, 2003, her 1997 Florida will was admitted to probate. Her son Christopher served as both personal representative of her estate and trustee of the nominee trust. At the time of Frances’s death, both Frances and Cedric were staying at the Massachusetts home. After Frances’s death, Cedric went to live with his daughter Linda in New York.

Cedric filed a timely election to take an elective share of his wife’s estate, motivated, he contends, by his wife’s “parsimonious provision for him in her Will.” On January 18, 2005, Christopher, as personal representative of the estate, filed a petition to determine elective share. By an amendment to the petition, Christopher requested the court to construe Article Two of the 1997 Florida will as creating an elective share trust.

The parties agreed that the valuation of the trust turned on whether Article Second (A) quoted above, amounted to an elective share trust. See § 732.2025(2), Fla. Stat. (2005). If Article Second (A) created an elective share trust, then its value satisfied Cedric’s elective share. If Article Second (A) were classified as an ordinary trust, then its actuarial value would be lower, so that Cedric was entitled to an additional cash payment from the estate to satisfy his elective share. As Cedric argues, Christopher, the trustee of the nominee trust, “has attempted to limit Cedric’s elective share to the bare right of occupancy in the Massachusetts property, with no cash payment to Cedric,” by asserting that Article Second (A) amounts to an elective share trust.

The court conducted a trial on the disputed issues in December, 2005. Neither the Massachusetts attorney who drafted the 1989 will and nominee trust, nor the attorney who drafted the 1997 Florida will had ever heard of an elective share trust at the time they performed the drafting work for Frances. On February 6, 2006, the court entered an amended order concluding that Article Second (A) was not an elective share trust under section 732.2025(2).

We agree with the trial court that Article Second (A) did not create an elective share trust. Section 732.2025(2) defines an elective share trust and provides,

(2) “Elective share trust” means a trust where:
(a) The surviving spouse is entitled for life to the use of the property or to all of the income payable at least as often as annually;
(b) The trust is subject to the provisions of former s. 738.12 or the surviving spouse has the right under the terms of the trust or state law to require the trustee either to make the property productive or to convert it within a reasonable time; and
(c) During the spouse’s life, no person other than the spouse has the power to distribute income or principal to anyone other than the spouse.

First, Article Second (A) fails to satisfy the requirement of section 732.2025(2)(a), because under the 1989 and 1997 wills, Cedric is entitled neither to the “use” of the property within the meaning of the statute, nor to “income” derived from the property.

Article Second (A) devised the “beneficial interest” in the nominee trust to Christopher, the trustee; the will left Cedric something less than the beneficial interest, which was the “right” to “exclusively live in and occupy” the residence on the Chatham property. Cedric does not have the right to all “use” of the beneficial interest in the trust, because he does not have the right to receive income derived from the property. Under Article Second (A), the obligation of the trustee is not to manage the trust property to produce income for Cedric. Rather, if Cedric cannot afford the maintenance and taxes on the property, the trustee is “directed” to mortgage the property to pay the maintenance and taxes, an action designed to safeguard the property, not to support Cedric. The power to mortgage the property rests with the trustee, not with Cedric.

Unlike the 1982 Florida will, Article Second (A) created something less than a life estate in the Massachusetts property. “As an incident to [a] life estate in ... realty [one] becomes entitled to the exclusive use and occupation of the property with the right to such rents, issues and profits as are derivable therefrom.... ” Marshall v. Hewett, 156 Fla. 645, 24 So.2d 1, 3 (1945). The granting of only the right to “live in and occupy” the residence, and not the “use” of the beneficial interest in the trust, distinguishes this case from cases holding that instruments employing the term of art “use” have created a life estate in real property. Thus, in Joyner v. Williams, 156 Fla. 615, 23 So.2d 853, 854 (1945), the supreme court held that the following language in a deed created a life estate in the entire “premises” described in the deed, and not merely a life estate in a cottage located on the premises: “shall be permitted to use and occupy said premises as a home as long as” either party shall live.

For these reasons, we conclude that Article Second (A) gave Cedric something less than “use of the property” for life under section 732.2025(2)(a).

We also hold that Article Second (A) does not satisfy the requirements of section 732.2025(2)(b). That section requires that the purported elective share trust be “subject to the provisions of former s. 738.12 or the surviving spouse has the right under the terms of the trust or state law to require the trustee either to make the property productive or to convert it within a reasonable time.”

Nothing in Article Second (A) gives Cedric the right to compel the trustee “to make the property productive” or to sell or otherwise convert it. No express language in the Article subjects the trust to section 738.12. Even if it had not been repealed, that section would be inapplicable here, since it applied only in favor of an income beneficiary of an irrevocable trust. See § 738.12, Fla. Stat. (2001). Article Second (A) does not make Cedric an income beneficiary of the nominee trust. We reject Christopher’s reading of Sauter v. Bravo, 771 So.2d 1213 (Fla. 4th DCA 2000) that the right to live in real property equate[s] to (and therefore satisfie[s]) the right to all the income on the property as required under former section 738.12. Unlike the instruments involved in this case, the trust agreement in Sauter allowed a widow “income for life”; the widow’s right to income did not arise merely from her right to reside in the real property. 771 So.2d at 1213.

Christopher argues that section 738.606, Florida Statutes (2005), provides Cedric the statutory authority to compel the trustee to produce income from the Massachusetts property. However, that section applies to a “trust the income of which is required to be distributed to the grantor’s spouse.” Id. Article Second (A) does not require that any income be distributed to Cedric.

On a remaining point on appeal, we decline Christopher’s invitation to rewrite the wills under the guise of construing them.

Affirmed.

GUNTHER and FARMER, JJ., concur.

      . "A 'nominee trust' is a trust in which the trustee holds legal title to the trust property for the trust's beneficiaries, but the beneficiaries exercise the controlling powers, and the actions that the trustees may take on their own are very limited. Such trusts are a common device for holding title to real estate, and afford certain tax advantages. A nominee trust is not a trust in the strict classical sense, because of the trustee-beneficiaiy relationship.” 76 Am.Jur.2d Trusts § 7 (2006) (citing Vittands v. Sudduth, 49 Mass.App.Ct. 401, 730 N.E.2d 325 (2000)). "The trustee of a nominee trust acts at the direction of the beneficiaries, functioning more as an agent than as a true trustee.” Zuroff v. First Wisconsin Trust

        Co., 41 Mass.App.Ct. 491, 671 N.E.2d 982, 983 n. 3 (1996); see Morrison v. Lennett, 415 Mass. 857, 616 N.E.2d 92, 94 (1993).

      . We note that section 732.2155(4), Florida Statutes (2005), provides that "any trust created by the decedent before the effective date [contained in section 732.2155(1) ] that meets the requirements of an elective share trust is treated as if the decedent created the trust after the effective date of these sections and in satisfaction of the elective share.”

      . Section 738.12 was repealed by Chapter 2002-42, section 2, Laws of Florida, effective January 1, 2003.