author: NORTHCUTT, Judge.

text:
    Edward LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-407.
    District Court of Appeal of Florida, Second District.
    April 5, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra W. Dasrat, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

In 1999, Edward Lopez was sentenced to fifteen years’ imprisonment as a prison releasee reoffender for burglary of a dwelling, and to ten years’ imprisonment as a habitual offender for possession of burglary tools. The sentences were to run concurrently. In a later motion pursuant to Florida Rule of Criminal Procedure 3.800(a), Lopez successfully challenged the legality of his prison releasee reoffender sentence for the burglary conviction on the ground that the dwelling he burgled was unoccupied. See State v. Huggins, 802 So.2d 276 (Fla.2001); Zook v. State, 883 So.2d 332, 333 (Fla. 2d DCA 2004) (stating that 2001 amendment to section 775.082(9)(a)(l)(q), which made burglary of an unoccupied dwelling a qualifying offense for PRR sentencing, did not apply retroactively). Accordingly, the court re-sentenced Lopez on the burglary conviction to fifteen years’ imprisonment as a habitual offender. For reasons unknown, the court also resentenced Lopez on the burglary tools charge, to fifteen years’ imprisonment as a habitual offender. Lopez contends this was error, and we agree.

We note that prior to briefing in this appeal Lopez filed a rule 3.800(b)(2) motion challenging the legality of his new sentence on the burglary tools conviction. The circuit court ordered the State to respond. In its response the State observed that “[w]hile Count 2 [possession of burglary tools] is a third degree felony, defendant was previously sentenced to ten years Florida State Prison as a Habitual Felony Offender, again a legal sentence and not subject to a 3.800(b) motion.” True enough, but the response said nothing of Lopez’s challenge to the fifteen-year habitual offender sentence imposed for that conviction on resentencing. The circuit court did not rule on Lopez’s motion, hence it is deemed denied. Fla. R.Crim. P. 3.800(b)(2)(B).

The new sentence on the burglary tools conviction must be reversed for several reasons. First, Lopez never challenged his original sentence on that charge; his rule 3.800(a) motion addressed only his PRR sentence for burglary. Thus, the burglary tools sentence was final and could not be modified. Second, increasing the term of this final sentence violated double jeopardy. See Troupe v. Rowe, 283 So.2d 857 (Fla.1973); see also Fasenmyer v. State, 457 So.2d 1361 (Fla.1984). Finally, the sentence is illegal because it exceeds the maximum permissible habitual offender sentence for a third-degree felony. See § 775.084(4)(a)(3), Fla. Stat. (Supp.1998) (requiring that a habitual offender sentence for a third-degree felony not exceed ten years).

We reverse the fifteen-year sentence imposed on resentencing for Lopez’s conviction for possession of burglary tools. We remand with directions to reinstate Lopez’s original ten-year habitual offender sentence for that offense.

SALCINES and VILLANO!, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles TONGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-328.
    District Court of Appeal of Florida, Second District.
    April 5, 2006.
    Rehearing and Rehearing En Banc Denied April 5, 2006.
    James Marion Moorman, Public Defender, and Alison Oasis Kahn and John R. Blue, Special Assistant Public Defenders, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

In this direct appeal, Charles Tonge challenges his judgment and sentence for armed burglary of a dwelling, grand theft of a firearm, and grand theft. We decline to address his claims alleging ineffective assistance of trial counsel. See Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). We affirm as to his remaining claims, only one of which warrants discussion.

Citing this court’s decision in McKinney v. State, 796 So.2d 579 (Fla. 2d DCA 2001), Tonge argues that the trial court erred when it denied his motion for a judgment of acquittal on the armed burglary and grand theft of a firearm charges. We disagree. Although the evidence here may have supported Tonge’s hypotheses of innocence that someone else at some other time entered the victim’s house and stole the gun, in this case, unlike McKinney, the State offered evidence that would be sufficient to permit a jury to reject Tonge’s claim. See State v. Law, 559 So.2d 187, 188 (Fla.1989). In particular, when Tonge was arrested, he had in his possession coins that the victim identified as having come from the coin collection stolen from his home. The victim testified that those coins were stored in a box he kept in his closet and that he stored his gun and ammunition in the same box. We conclude that this evidence distinguishes this case from McKinney and that it is sufficient to permit a jury to reject Tonge’s claim that while he may have taken the coins, someone else at some other time took the gun.

Affirmed.

STRINGER, SILBERMAN, and KELLY, JJ., Concur.


author: LaROSE, Judge.

text:
    Julian NUNEZ, Ashley Nunez, Michael Yatros, and Jean Ann Yatros, Individually and on behalf of all others similarly situated, Appellants/Cross-Appellees, v. WESTFIELD HOMES OF FLORIDA, INC., Appellee/Cross-Appellant.
    No. 2D05-1089.
    District Court of Appeal of Florida, Second District.
    April 5, 2006.
    L. Joseph Shaheen, Jr., Joshua E. Burnett, and Mitchell C. Robiner of Gardner Wilkes Shaheen; Kellie Lightbourn of Kellie Lightbourn, P.A.; and Stuart C. Mark-man and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa, for Appellants/Cross-Appellees.
    Gregory J. Orcutt of Bricklemyer, Smolker & Bolves, P.A.; and Timothy A. Hunt and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Appel-lee/Cross-Appellant.
   LaROSE, Judge.

This is an appeal from a nonfinal order compelling arbitration. See Fla. R.App. P. 9.130(a)(3)(C)(iv). The underlying dispute involves claims that a builder constructed homes that did not comply with applicable building codes. We review the trial court’s order de novo. See RNK Family Ltd. P’ship v. Alexander-Mitchell Assoc., 788 So.2d 1035, 1036 (Fla. 2d DCA 2001); Ocwen Fed. Bank FSB v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000). Because the parties did not agree to arbitrate claims such as those presented here, we reverse.

Julian and Ashley Nunez and Michael and Jean Ann Yatros (collectively, the Buyers), bought new homes built by West-field Homes of Florida, Inc. (Westfield). Allegedly, Westfield violated building codes by misapplying the exterior stucco. According to the Buyers, Westfield applied the stucco so thinly that it made the homes more susceptible to cracking, water, wind, and fire damage. The Buyers alleged further that Westfield violated building codes by failing to install drainage devices to allow water to escape from behind the stucco. Limited leakage and stucco staining may have occurred in one home. Nevertheless, the Buyers do not allege that their homes sustained any physical damage as a result of the alleged building code violations.

The Buyers sued Westfield, alleging that the building code violations caused a diminution of their homes’ value. In their class action complaint, the Buyers seek damages for breach of contract and relief under section 553.84, Florida Statutes (2000).

Westfield moved to compel arbitration. According to Westfield, its Limited Home Warranty (the Warranty) requires the Buyers to arbitrate Unresolved Warranty Issues. The Warranty defines Unresolved Warranty Issues as:

All requests for warranty performance, demands, disputes, controversies and differences that may arise between the parties to this Limited Warranty that cannot be resolved among the parties. An Unresolved Warranty Issue may be a disagreement regarding:
(a) the coverages in this Limited Warranty;
(b) an action performed or to be performed by any party pursuant to this Limited Warranty;
(c) the cost to repair or replace any item covered by this Limited Warranty.

The Buyers opposed Westfield’s motion. They argued that the alleged building code violations were not Unresolved Warranty Issues subject to arbitration. The trial court granted Westfield’s motion, concluding that the Buyers’ claims “potentially” are within the scope of the Warranty. We cannot agree.

When they bought their homes, the Buyers executed sales contracts in which they agreed to “waive and relinquish ... any claims for repairs or modifications to.the property except as specifically covered by [the] Warranty.” A disclosure addendum provides that, with respect to Warranty service, any disputes “over the need for service or repair, the technique or method of work, [Westfield’s] duties under the ... Warranty, or the interpretation or meaning of the ... Warranty,” will be resolved according to the provisions of the Warranty.

The Warranty explicitly details what is and is not covered. Indeed, the Warranty contains approximately eleven pages of situations, so-called warranty standards, that the Buyers may encounter during the Warranty period and describes the efforts, if any, that Westfield will take to repair the situation. For example, Westfield must repair exterior cracks in stucco, cement, and plaster surfaces that exceed one-eighth inch in width. The Buyers allege no such condition. The Warranty is silent as to screeds or other drainage devices described by the Buyers; apparently, Westfield undertook no warranty obligation for such items.

Westfield also made clear that it would incur no liability under the Warranty absent physical damage. The Warranty does not extend to “[a]ny deficiency which does not result in actual physical damage or loss to the Home.” Particularly important for our analysis, the Warranty excludes coverage for “[violation of applicable Building Codes or ordinances unless such violation results in a Defect which is otherwise covered under this ... Warranty.” (Emphasis added). The Warranty defines a “Defect” as “[a] condition of any item warranted by this ... Warranty which exceeds the allowable tolerance specified in this ... Warranty.” Thus, absent a “Defect” otherwise covered by the Warranty, building code violations, by themselves, are beyond the scope of West-field’s Warranty obligations. Moreover, under any circumstances, the Warranty does not obligate Westfield to conform a home to the applicable building codes.

The language of the Warranty certainly is not crystalline. Scrutinizing the operative document, however, we discern a simple framework to determine whether the Buyers must submit their claims to arbitration. The Warranty extends only to specified situations. Westfield will remedy only those situations. Absent a defect otherwise covered by the Warranty, the Warranty does not extend to building code violations. If the parties dispute Warranty coverage, Unresolved Warranty Issues exist. Westfield chose to limit the scope of disputes subject to arbitration. Cf. Mercedes Homes, Inc. v. Rosario, 920 So.2d 1254 (Fla. 2d DCA 2006). Only Unresolved Warranty Issues must be arbitrated.

Although the Warranty and related sales contract may be unduly complex, the legal issue is straightforward. In ruling on a motion to compel arbitration, the trial court must decide (1) whether a valid written agreement to arbitrate existed; (2) whether an arbitrable issue exists; and (3) whether the right to arbitrate has been waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); Towers v. Clarendon Nat’l Ins. Co., 927 So.2d 913, 2006 WL 12939 (Fla. 2d DCA Jan.4, 2006). Here, we are called upon to decide only whether the parties agreed to arbitrate the building code violations as described in the class-action complaint.

We, of course, must accord the parties’ contract language its plain meaning. See Interfirst Fed. Sav. Bank v. Burke, 672 So.2d 90, 92 (Fla. 2d DCA 1996). Guided by this principle, we conclude that the alleged building code violations are not subject to arbitration. The Buyers do not allege that their homes have sustained physical damage or otherwise suffer from a situation that triggered Westfield’s Warranty obligations. The Buyers do not allege and Westfield does not concede that the Warranty, on its face, extends to their claims.

To the contrary, the Warranty specifically excludes such coverage. Although an Unresolved Warranty Issue extends to “all requests for warranty performance, demands, disputes, controversies and differences,” this provision necessarily presupposes the existence of some situation otherwise covered by the Warranty. Because Westfield chose to exclude from the Warranty the types of claims made by the Buyers, there can be no Unresolved Warranty Issues as to these claims. And, the limited arbitration provision in the Warranty mandates arbitration only of Unresolved Warranty Issues. See Grosseibl v. J. Chris Howard Builders, Inc., 739 So.2d 1255 (Fla. 5th DCA 1999) (holding arbitration not required because warranty did not cover buyer’s claims). Accordingly, we reverse the order compelling arbitration and remand for further proceedings in the trial court.

In its cross-appeal, Westfield challenges the trial court’s reservation of jurisdiction to consider any remaining building code violation claims “depending on the outcome of the arbitration.” This ruling, anticipated the possibility that if the arbitrator decided that the Buyers’ claims are not covered by the Warranty, the Buyers could pursue nonwarranty claims in the trial court. Because we conclude that this matter should proceed in the trial court, Westfield’s cross-appeal is moot.

Reversed and remanded.

FULMER, C.J. and BAIRD, W. DOUGLAS, Associate Judge, Concur.

      . The Buyers purported to represent a class of:
      All persons who own a home located in Florida which was built, or is being built, by Westfield in violation of applicable building code requirements regarding stucco application and thickness and/or in violation of applicable building code requirements that weep screeds or other effective means of drainage behind stucco be installed.

      . Section 553.84 provides:
      Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation....

      . With respect to water leakage and staining in one of the homes, the Warranty does not list mold as a covered item. Coverage for leakage appears in the Warranty section dealing with basements and is limited to leaks with actual flow or trickling of water through a wall or flow causing an accumulation. The class-action complaint alleges no such conditions.


author: STRINGER, Judge.

text:
    William HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5165.
    District Court of Appeal of Florida, Second District.
    April 5, 2006.
   STRINGER, Judge.

William Harvey appeals the summary denial of his motion for DNA evidence examination filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the postconviction court’s denial of the motion because it is facially insufficient. Our affirmance is without prejudice to any right Harvey might have to file a timely, facially sufficient rule 3.853 motion. See Scarborough v. State, 906 So.2d 379 (Fla. 2d DCA 2005).

Affirmed.

KELLY and WALLACE, JJ., Concur.


text:
    EPISCOPAL DIOCESE OF CENTRAL FLORIDA, Appellant, v. PRUDENTIAL SECURITIES, INC., etc., et al., Appellees.
    No. 5D05-248.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.

      Robert Dyer and Brian R. Gilchrist of Allen, Dyer, Doppelt, Milbrath & Gilchrist, Orlando, for Appellant.
    Ronald E. Crescenzo, Patricia M. Chris-tiansen, Richard L. Martens and Charles L. Pickett of Boose Casey Ciklin Lubitz Martens McBane & O’Connell, West Palm Beach, for Appellee.
   ON MOTION FOR REHEARING AND FOR REHEARING EN BANC AND MOTION FOR CLARIFICATION

PER CURIAM.

We deny appellees’ motion for rehearing and for rehearing en banc but grant the appellees’ motion for clarification. Accordingly, we withdraw our prior opinion and substitute the following opinion.

The Episcopal Diocese of Central Florida (“Diocese”) appeals a trial court order confirming an arbitration award and entering final judgment. The Diocese claims that the trial court erred in ordering this case to arbitration. We agree.

In 1992, Prudential Securities (“Prudential”) hired John Trumbo (“Trumbo”) as a broker after he was fired by another brokerage firm for mismanaging client funds. In May 1999, the Diocese established four investment accounts with Prudential, with Trumbo serving as broker on each account. The Diocese signed an application, a “Command Account Agreement,” and a “Client’s Opening Cash Agreement” for each account.

The Command Account Agreement contained the following arbitration provision:

I agree that all controversies which may arise between us concerning any transaction (whether executed or to be executed within or outside of the United States), my account or this or any other agreement between us, whether entered into prior, on, or subsequent to the date indicated on the signature page, shall be determined by arbitration.

The Cash Agreement contained the following arbitration provision:

Cash Agreement
The undersigned agrees, and by carrying an account for the undersigned you agree, all controversies which may arise between us concerning any transaction or the construction, performance or breach of this or any other agreement between us, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration.

The Diocese later received a welcome letter from Prudential that listed the Diocese’s primary investment objective as “Income” and its risk tolerance as “Conservative.”

Trumbo managed the accounts until he was “permitted to resign” from Prudential on July 21, 2000. Prudential was required to file a termination notice regarding Trumbo and it did so, listing the reason as a “loss of confidence regarding business practices.” Later Prudential reported that Trumbo had been discharged after Prudential determined that his investment philosophy “was not consistent with the investment philosophy espoused by the firm.”

Sometime in late August or early September 2000, Trumbo informed the Diocese that he was changing brokerage firms and obtained consent to move all four of its accounts to his new firm, Continental Broker Dealer, Inc., (“Continental”). Prudential sent a letter to the Diocese acknowledging the transfer of the funds to Continental, but the letter did not allege any improprieties or indicate that Trumbo had been fired. The transfer of funds was completed on or about October 2, 2000. Over the next year the funds lost a combined $775,113 in value.

The Diocese then filed a tort action against Prudential seeking to recover damages for its investment losses at Continental. The Diocese alleged that Prudential failed to warn the Diocese, before transferring its accounts to Continental, that Trumbo’s trading at Prudential was inconsistent with the Diocese’s investment objectives and that Trumbo had a significant regulatory history. In essence, the Diocese asserted that but for Prudential’s breach of fiduciary duty, the Diocese never would have allowed Trumbo to manage the funds or transfer the funds to Continental and would not have suffered losses.

Prudential filed a motion to compel arbitration which was granted by the trial court. The Diocese filed an untimely notice of appeal of that order but it was dismissed sua sponte by this court for lack of jurisdiction. Following a five-day arbitration hearing, the panel entered an amended award dismissing or denying each claim raised by the Diocese.

The Diocese then filed another complaint, challenging the jurisdiction of the arbitration panel and seeking to vacate the amended award. The new complaint sought to reinstate the original complaint on the ground that the Prudential contracts did not require arbitration on the issue of the Diocese’s damages caused by Trumbo while he was with Continental.

The Diocese moved for judgment on the pleadings. Prudential answered and moved to confirm the amended arbitration award and for an order of expungement. The trial court denied the Diocese’s motion to reinstate and entered its Order Confirming Arbitration Award, Entry of Final Judgment in Conformity Therewith, and Order of Expungement. The Diocese filed this appeal.

Absent one of the statutory grounds for vacating an arbitration award, neither a trial court nor an intermediate appellate court may overturn an arbitration award. See, e.g., Schnurmacher Holding v. Noriega, 542 So.2d 1327 (Fla.1989); § 682.13, Fla. Stat. (2005). A court must consider three elements in considering a motion to compel arbitration: (1) whether a valid written agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived. See, e.g., Qubty v. Nagda, 817 So.2d 952 (Fla. 5th DCA 2002).

The issue here relates to the first prong — whether the written agreements between Prudential and the Diocese require the Diocese’s claim for damages to be arbitrated. Whether an arbitration clause requires arbitration of a particular dispute is determined by the intent of the parties, which is discerned from the language used in their agreement. See, e.g., Citigroup, Inc. v. Amodio, 894 So.2d 296 (Fla. 4th DCA 2005), rev. den., 911 So.2d 792 (Fla.2005), relying upon Seifert v. U.S. Home Corporation, 750 So.2d 633 (Fla.1999).

Like the situation in Amodio, this is not a case in which the federal policy favoring arbitration agreements drives our decision. Federal law favors arbitration only as to issues the parties have actually agreed to arbitrate. Amodio, 894 So.2d at 298, citing Volt Info. Scis. Inc. v. Stanford Junior Univ., 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (Federal Arbitration Act does not confer right to compel arbitration of any dispute at any time; Act confers only right to obtain order directing arbitration proceeding in manner provided for by parties’ agreement). Also under federal law, the language of the agreement defines the scope of the arbitration agreement. EEOC v. Waffle House Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (absent an ambiguity in the agreement, it is the language of the contract that defines the scope of disputes subject to arbitration pursuant to the Federal Arbitration Act).

Turning to the language in the agreements, the Diocese agreed to submit disputes involving any “transaction,” “my account,” or the “construction, performance or breach of this or any other agreement between us.” The Diocese has conceded that any losses it may have suffered while its accounts were at Prudential would be arbitrable under these terms. However, the Diocese is not suing for those losses— rather it seeks damages for its investment losses at Continental based on a breach of fiduciary duty tort claim.

In Seifert, the Florida Supreme Court held that an agreement to arbitrate in a contract between the parties does not necessarily mandate arbitration of a subsequent and independent tort action based upon common law duties. In that case, the plaintiffs husband died when their home’s air-conditioning system circulated carbon monoxide emissions from their car left running in the garage. The plaintiff then filed a wrongful death action against the homebuilder U.S. Home Corporation. U.S. Home moved to compel arbitration based on a provision in the parties’ contract for sale and purchase which required arbitration of “Any controversy or claim arising under or related to this Agreement or to the Property.”

In determining whether the tort claim came within the contract’s arbitration clause, the court held that the appropriate test was whether “the tort claim, as alleged in the complaint, arises from and bears such a significant relationship to the contract between the parties as to mandate application of the arbitration clause.” Seifert, 750 So.2d at 640. To aid in this determination, the court examined the contract containing the arbitration clause and the allegations of the complaint to see if there existed a “sufficient nexus” between the two.

After doing so, the court concluded the tort claim in that case did not have a sufficient relationship to the agreement so as to require submission of the cause to arbitration:

While it is certainly true that this dispute would not have arisen but .for the sales agreement between U.S. Home and the Seiferts, we conclude that the mere existence of such contract is not sufficient to compel that this dispute be arbitrated. See Armada [Coal Export, Inc. v. Interbulk, Ltd., 726 F.2d 1566 (11th Cir.1984) ]; Hersman [Inc. v. Fleming Companies Inc., 19 F.Supp.2d 1282 (M.D.Ala.1998) ]. None of the allegations assert that U.S. Home’s duties or obligations arose from or were governed by the contract. See Necchi [S.p.A. v. Necchi Sewing Mach. Sales Corp.l 348 F.2d [693] at 696. Even under a broad approach, the dispute does not create a “significant relationship” to the contract because none of the allegations in the complaint refer to or mention the sales agreement between the Seiferts and U.S. Home. Accordingly, we are unable to conclude that the tort action dispute in this case bears a significant relationship to the contract or that the parties in contracting necessarily contemplated the existence and arbitration of future tort claims for personal injuries based on a party’s common law negligence.

750 So.2d at 642.

Similarly, the mere existence of the agreements to arbitrate in the present case is not sufficient to compel this dispute to arbitration. The cause of action alleged by the Diocese, damages for failing to warn the Diocese of Trumbo’s history of mismanagement and reason for termination from employment, is a tort action for breach of fiduciary duty. The fiduciary concept derives from trust and agency principles. Actions contrary to the duties of loyalty and care are remedied by giving the beneficiary of the relationship the right to recover for the fiduciary’s breach. Gochnauer v. A.G. Edwards & Sons, Inc., 810 F.2d 1042 (11th Cir.1987).

Florida courts have long recognized a breach of fiduciary duty claim at common law. Gochnauer. Thus the agreements in this case did not place the parties in a “unique relationship” that created new duties not otherwise imposed by law. See Seifert. See also Amodio (arbitration provision in contract between investor and financial services company, which covered claims “concerning any order or transaction, or the construction, performance or breach” of the contract, did not require arbitration of investor’s claims for fraud, negligent misrepresentation, and securities violations arising out of analyst’s advice that investor not sell certain stock; investor’s claims did not arise out of a transaction or order, and investor alleged breaches of duties owed to the general public, rather than duties arising from the contract).

As was the case in Seifert, the factual allegations in the Diocese’s complaint do not rely on the agreements between the Diocese and Prudential, and the resolution of this dispute is not dependent upon the construction of those agreements. Indeed, the damages suffered by the Diocese occurred after the contracts with Prudential were terminated and after the accounts were transferred. See Miller v. Roberts, 682 So.2d 691 (Fla. 5th DCA 1996) (arbitration provisions of employment agreement, shareholder restriction agreement and stock purchase agreement involving three physicians practicing together which required arbitration “with respect to the terms of the Agreement,” did not compel arbitration of tort claims alleging breach of fiduciary duty, fraud and conspiracy).

In reaching our conclusion, we are mindful of Hirshenson v. Spaccio, 800 So.2d 670 (Fla. 5th DCA 2001) but find that case distinguishable. In Hirshenson, the plaintiff sued her investment counselor and broker for fraud, negligent misrepresentation, breach of fiduciary duty, negligence, and securities violations after she lost her entire investment. This court concluded the dispute by the investor involved the suitability of the investments, an issue clearly related to the contract. In addition, the arbitration clause in that case was extremely broad and even covered the “conduct” of the parties.

In contrast, the arbitration provisions in this case are much narrower. They do not show that parties contemplated arbitration of a tort claim for breach of fiduciary duty. Accordingly we reverse the trial court’s order compelling arbitration, and order confirming arbitration award for damages arising after the Diocese’s accounts were transferred, and remand this case for further proceedings.

REVERSED and REMANDED for further proceedings.

PLEUS, C.J, SHARP, W., J., and SEMENTO, L.J., Associate Judge, concur.

      . Section 517.12(b), Florida Statutes, provides:
      Registration of dealers, associated persons, investment advisers, and branch offices

        (12)(b) Every dealer, investment adviser, or federal covered adviser shall promptly file with the department, as prescribed by rales adopted by the department, notice as to the termination of employment of any associated person registered for such dealer or investment adviser in this state and shall also furnish the reason or reasons for such termination.

      . A non-final order compelling arbitration may be appealed. See, e.g., Tropical Ford, Inc. v. Major, 882 So.2d 476, 478 (Fla. 5th DCA 2004); Fla. R.App. Proc. 9.130(a)(3)(C)(iv). Notwithstanding, having failed to take a non-final appeal, the appellant is permitted to pursue a final appeal after arbitration is completed. See, e.g., Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So.2d 146 (Fla. 3d DCA), rev. denied, 835 So.2d 268 (Fla.2002); Investors Associates, Inc. v. Moss, 441 So.2d 1144 (Fla. 3d DCA 1983); Saul v. Basse, 399 So.2d 130 (Fla. 2d DCA 1981).

      . "Any and all controversies arising out of or relating to this agreement or the conduct of the parties hereto which can be lawfully submitted to arbitration, should be submitted to arbitration.... This clause binds the undersigned to submit to arbitration all claims including those which could otherwise be brought in a judicial forum and those which could be joined to other non-arbitrable claims.”

      . We interpret the Diocese’s complaint as seeking damages only for those losses it suffered after its accounts were transferred from Prudential to Continental. Our opinion is not intended to affect the decision of the arbitrators on other matters (e.g., any losses suffered by the Diocese while its accounts were at Prudential) if, for some reason not clear from this record, those matters were also submitted to arbitration.


author: GRIFFIN, J. SAWAYA, J.,

text:
    Irvin ASHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2680.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.

      James S. Purdy, Public Defender, and Rosemarie Farrell, 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.

Irvin Ashley [“Ashley”] appeals an order revoking his community control. Ashley had been convicted of a number of drug offenses and was on probation. On March 16, 2004, he was arrested and charged with violating his probation by committing three new law violations: possession of marijuana, maintaining a drug dwelling, and possession of drug paraphernalia. An evidentiary hearing was held on the violations.

Evidence was presented that some time before March 16, 2004, the police department'had received complaints of continuous traffic in and out of a residence at 413 Bronson Street in Palatka. Because of the complaints, Detectives Hagar and Meredith of the Palatka Police Department conducted two trash pulls at the residence within a thirty-day period. In the trash that was confiscated, the detectives found “[cjannabis, baggies, mail, paraphernalia.” They also found mail addressed to Ashley, which helped them to identify who was staying at the residence. Detective Hagar was then able to use this information to obtain a search warrant, which he and eight members of an entry team executed around 4:45 a.m. on March 5, 2004.

Detectives Hagar and Meredith testified that they found both cocaine and marijuana when executing the warrant, although none was found on Ashley’s person. They went upstairs immediately upon gaining entry to the home and met Ashley coming out of the master bedroom, which he was sharing with his girlfriend. She was found to be in possession of crack cocaine, which she attempted to flush down a toilet when she went to use the restroom. Additional crack cocaine was found in her wallet in the master bedroom. Two men, one of whom was Ashley’s stepbrother, Optavis Oliver [“Oliver”], were sleeping on the floor in a second bedroom. No drugs were found in this area. The third bedroom was empty.

Varying amounts of drugs and drug paraphernalia were found in the living areas of the home. In the downstairs living room, in plain sight, some marijuana was found on a T.V. stand. A one gram baggie of cannabis was found on an end table. Also lying on the end table were some of Ashley’s personal effects. They included a brochure from his grandmother’s funeral, some keys and some photographs. Gram-size plastic baggies were found in the dining room area. In the kitchen, they found two different kinds of scales, one digital and one metal, and more gram-size plastic baggies.

Outside, a marijuana cigarette was found in the ashtray of a truck belonging to Oliver. Marijuana remains were also found on the floorboards, and there was an odor of marijuana in the vehicle. However, no drugs were found in a second vehicle, which belonged to Ashley.

No evidence was offered by the State that Ashley owned or leased the residence at 413 Bronson Street. Nor was any evidence offered that he was paying rent on the property. Detective Meredith said he did not know who owned the residence or if it was leased. Detective Hagar testified that the house was owned by an unnamed third party. He had attempted to make contact' with the owner to determine whether the property was leased, but had been unsuccessful. He said they had also searched utility and other records and came up with several names, but not Ashley’s. Detective Hagar did not know what authority Ashley had over the residence, “[ojther than just we knew that’s where he was laying his head every night.” He had no idea how long Ashley had been staying at the residence. Detective Meredith testified that he had no knowledge of who had the right to control access to the house, “other than finding mail, and, you know, as far -as going on the stuff that was in there, you know, to find out who was staying, who was occupying the house.” Detective Meredith said that they had found mail addressed to Ashley at the residence during one of the trash pulls.

Ashley offered the testimony of two witnesses. Oliver, claimed responsibility for the marijuana and baggies found inside the residence and in his vehicle. He claimed that on the night the warrant was executed, he had arrived at the residence after everyone was asleep. He often stayed at the residence, as did a number of other unnamed people. Oliver had smoked some marijuana in his truck and brought some marijuana and some baggies inside. He said that Ashley had told him not to bring any stuff inside his house because Ashley was on community control. Oliver claimed he had already pled guilty to possession of the marijuana and paraphernalia they found in the house.

Ashley himself testified that he moved into 413 Bronson Street on January 5, 2004. He said that the house was also occupied by Mr. Mulberry, “the guy that I moved in with”, who was his “cousin’s old man.” In fact, it was Mr. Mulberry’s name on the lease. The warrant was executed approximately two months after Ashley moved in. Ashley testified that before his arrest, he had successfully completed eight and one-half months of drug offender community control, two separate drug classes and a twelve-step narcotics anonymous class. He had never failed any of the random urinalyses which he had taken weekly. Ashley denied knowing of any drugs or drug paraphernalia in the home.

Defense counsel moved for a judgment of acquittal at the close of all the evidence, arguing that the evidence was insufficient to show that Ashley possessed drugs or paraphernalia. He also objected that the evidence was insufficient to show that he had maintained a drug dwelling, as it failed to show that Ashley controlled the residence or had knowledge of the drugs located on the premises.

The trial court agreed that the evidence was insufficient to show that Ashley possessed any of the drugs or paraphernalia found during the search. However, the court found the evidence sufficient to show that Ashley had “maintained a drug dwelling,” in violation of section 893.13(7)(a)5, Florida Statutes (2003), which makes it unlawful for any person:

To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

Section 893.13(7)(a)5, Florida Statutes (2003), has been interpreted by the Second District Court of Appeal in State v. De La Llana, 693 So.2d 1075 (Fla. 2d DCA 1997), which is the only case to have discussed the elements of the offense. There, the court determined that “keep” means “conduct or manage” and “maintain” means to “carry on.” The Second District concluded that the statute could be applied to one acting in a managerial capacity for a business because he has the requisite control over the location. In reaching this conclusion, the court also analogized the offense to the criminal offense of keeping or maintaining a place for the purpose of gambling:

Our conclusion is further buttressed by utilizing the principles of Tingley [v. Brown, 380 So.2d 1289, 1290 (Fla.1980) ], and analyzing how the terms “keep” and “maintain” have been construed by an appellate court in the context of another criminal statute, section 849.01, Florida Statutes (1995), which prohibits in part the keeping or maintaining of a place for the purpose of gambling, and which part has remained virtually unchanged since its enactment in 1887. See ch. 3764, § 1, at 145, Laws of Fla. (1887). In Perlman v. State, 269 So.2d 385 (Fla. 4th DCA 1972), the court reviewed the sufficiency of the evidence to sustain a conviction under this part of the statute. It first noted that in order to prove this particular offense the state must establish that a defendant had “ownership or control of aplace” where habitual gambling has occurred with the defendant’s knowledge, consent, or direction. • Id. at 387 (emphasis added). The court further observed that the gravamen of the offense is not gambling as such or habitual use of property for gambling but instead “is the maintenance or keeping of a place for gambling purposes. ” Id. (emphasis added). Based on this statutory analysis, it affirmed the conviction of one of the appellants relying in part on evidence that he was the manager of the premises. Id. at 388-89; see also Reinmiller v. State, 93 Fla. 462, 111 So. 633 (1927) (affirming conviction of appellant under same part of statute whom evidence established was the manager and operator of premises). Thus, as construed within the context of an analogous criminal statute, the concept of “keep or maintain” contemplates conduct involving control over a place in a managerial capacity.

Id. at 1078-79 (emphasis added).

As De La Liana indicates, the essence of the offense of keeping or maintaining a drug dwelling is not the drug activity, but the maintenance or keeping of a dwelling for the purpose of using, keeping or selling controlled substances. As the dissent notes, this is a “crack house” statute, designed to eliminate the use of structures as destinations for people to visit for the purpose of using or dealing drugs. Not every residence where drugs are used is a crack house. The offense clearly requires proof that the property be maintained for the illicit purposes identified and that the defendant had ownership or control of 413 Bronson Street such that the activity took place at his direction or with his consent. Here, such proof was lacking, even by a preponderance of the evidence. See, e.g., Bufford v. State, 844 So.2d 812 (Fla. 5th DCA 2003).

REVERSED.

TORPY, J., concurs.

SAWAYA, J., dissents, with opinion.

SAWAYA, J.,

dissenting.

Having been convicted of numerous drug offenses, Irvin Ashley was placed on community control, which he was subsequently found to have violated by committing the new criminal offense of keeping or maintaining a drug-house in violation of section 893.13(7)(a)5., Florida Statutes (2003). The majority concedes that the trial court correctly held that Ashley knew his house had been resorted to by people using controlled substances. The only reason the majority concludes that Ashley did not keep or maintain a drug-house in violation of section 893.13(7)(a)5. is because the majority believes that the evidence does not establish that he had “ownership or control over 413 Bronson Street,” which is the address of Ashley’s residence and the location of the alleged criminal conduct. Hence, I will address that issue and explain why I believe that sufficient evidence was presented to the trial court to prove that Ashley did “keep or maintain” a dwelling for drug use in violation of the statute.

In order to establish that an individual on community control or probation violated supervision by committing a new law violation, the state must prove by a preponderance of the evidence that the individual committed the charged offense. Robinson v. State, 907 So.2d 1284, 1287 (Fla. 2d DCA 2005). “Proof by a ‘preponderance’ of the evidence means proof which leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence.” Smith v. State, 753 So.2d 703, 704 (Fla. 5th DCA 2000) (citing Dep’t of Health & Rehab. Servs. v. M.B., 701 So.2d 1155 (Fla.1997); Walls v. State, 641 So.2d 381 (Fla.1994), cert. denied, 513 U.S. 1130, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995); State v. Edwards, 536 So.2d 288 (Fla. 1st DCA 1988)). “Sufficiency of the evidence is generally an issue of law that should be decided pursuant to the de novo standard of review.” Santiago v. State, 874 So.2d 617, 624 (Fla. 5th DCA 2004) (citing Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001); State v. Hawkins, 790 So.2d 492 (Fla. 5th DCA 2001)). We must apply a deferential standard of review to claims of insufficiency of the evidence, which requires that we determine “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in fávor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); see also F.B. v. State, 852 So.2d 226, 230 (Fla.2003). Once we determine that substantial competent evidence supports the finding that a defendant committed a new law violation based on the de novo standard of review, then we apply the abuse of discretion standard to determine whether the trial court erred in determining that the new law violation constituted a substantial and willful violation that warrants revocation of that defendant’s community control or probation. See State v. Carter, 835 So.2d 259, 262 (Fla.2002).

In order to resolve Ashley’s claim of insufficient evidence, it is appropriate to first determine the precise nature of the conduct prohibited by Florida’s drug-house statute, which makes it unlawful for any person

[t]o keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in violation of this chapter for- the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

§ 893.13(7)(a)5., Fla. Stat. (2003). Inclusion of this statute in chapter 893 of the Florida Statutes reveals that it is part of Florida’s comprehensive legislative scheme aimed at prohibiting illegal drug activity.

The issue that must be resolved is whether sufficient evidence was introduced to establish, by a preponderance of the evidence, that Ashley did “keep or maintain” the premises for illegal drug use. Although this is a fact-intensive issue that must be resolved based on all of the evidence presented in each particular case, the words “keep” and “maintain” are not defined in the statute and it is unclear what must be established in order to prove those elements of the offense. While the court in State v. De La Liana, 693 So.2d 1075 (Fla. 2d DCA 1997), did indicate that ownership and control are indicative of keeping or maintaining the premises for illegal drug use, the court was very careful to note that the focus of its decision was the constitutional issue whether the statute was constitutionally void for vagueness. Therefore, the court did not analyze other factors that should or may be considered in arriving at this determination. Although I agree that ownership and control are relevant factors, and that control is a necessary factor, they are not exclusive. Moreover, while I believe that some degree of control of the premises must be proven, that factor alone may not be sufficient in all cases. Because no other Florida court has analyzed the factors that may be considered in making this determination, it is very helpful to turn for guidance to decisions rendered by courts in other jurisdictions that have made that analysis based on statutory provisions similar to section 893.13(7)(a)5.

Congress has enacted a federal statute very similar to section 893.13(7)(a)5. that is commonly referred to as the “crack-house statute.” See United States v. Vemers, 53 F.3d 291, 295 (10th Cir.1995). It provides in pertinent part as follows:

Except as authorized by this subchapter, it shall be unlawful to ... knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.

21 U.S.C. § 856(a)(1). The federal courts have analyzed the factors that may be considered in determining whether an individual keeps or maintains premises for illegal drug use pursuant to the federal statute and have concluded that those factors include “[ajcts evidencing such matters as control, duration, acquisition of the site, renting or furnishing the site, repairing the site, supervising, protecting, supplying food to those at the site, and continuity.” United States v. Clavis, 956 F.2d 1079, 1091 (11th Cir.), modified, 977 F.2d 538 (11th Cir.1992); see also United States v. Morgan, 117 F.3d 849, 857 (5th Cir.1997) (noting some of the factors listed in Clavis and stating that “[supervisory control over the premises is one factor that this court has considered probative of ‘maintaining’ a place”); United States v. Cabbell, 35 F.3d 1255, 1261 (8th Cir.1994) (citing Clavis, 956 F.2d at 1091).

When the premises is a residence, the courts consider the fact that the defendant lived on the premises a significant factor in determining whether he or she maintained the premises. In Venters, the court explained:

The first such term is “maintain.” In United States v. Williams [923 F.2d 1397 (10th Cir.1990) ] we found that, where the “place” in question is a residence, the defendant must have a “substantial connection” to the home and must be more than a “casual visitor” in order to satisfy this element. 923 F.2d at 1403. Where the defendant lives in the house, this element is normally easily proved. Onick, 889 F.2d at 1431. However, the question of what constitutes “knowingly maintaining” becomes more complicated when the defendant does not reside where the drugs are. This question has been considered by the Eleventh Circuit.
Acts evidencing such matters as control, duration, acquisition of the site, renting or furnishing the site, repairing the site, supervising, protecting, supplying the food to those at the site, and continuity are, of course, evidence of knowingly maintaining the place considered alone or in combination with evidence of distributing from that place.
United States v. Clavis, 956 F.2d 1079, 1091 (11th Cir.), cert. denied sub nom., Edwards v. United States, 504 U.S. 990, 112 S.Ct. 2979, 119 L.Ed.2d 597 (1992).

Verners, 53 F.3d at 295-96. The Cabbell decision presents another example where living on the premises was considered an important factor. In Cabbell, the court considered the sufficiency of the evidence and, after reviewing the evidence in the light most favorable to the government, the court affirmed the conviction under the crack-house statute, writing:

Craig argues that the government did not produce evidence that he knowingly maintained the premises. We disagree. The evidence showed that Craig lived at Eddie Cabbell’s house and the Budget Hotel and paid rent to both with cocaine base and cash. In determining whether a person knowingly maintains a premises, “renting or furnishing the site” are relevant factors to consider. United States v. Clavis, 956 F.2d 1079, 1091 (11th Cir.1992), cert. denied, 507 U.S. 998, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993). Moreover, the jury could have inferred that Craig “maintained the house because he lived there.” United States v. Onick, 889 F.2d 1425, 1431 (5th Cir.1989). Based on the evidence, the district court did not err in holding that Craig maintained the premises.

Cabbell, 35 F.3d at 1261 (footnote omitted). In United States v. Lewis, 191 F.3d 461 (9th Cir.1999) (unpublished opinion available at 1999 WL 691041), the court held that the element of “maintain” was established beyond a reasonable doubt and explained:

Lewis argues there was insufficient evidence to prove that she was maintaining a place for drug trafficking. To prove this crime, the government must show that Lewis (1) knowingly (2) opened or maintained a place (3) for the purpose of manufacturing, distributing or using a controlled substance. See 21 U.S.C. § 856(a)(1); United States v. Basinger, 60 F.3d 1400, 1404 (9th Cir.1995).
As explained above, there was sufficient evidence to infer that Lewis knew about the distribution of drugs taking place at the apartment. Lewis’s only argument is that a reasonable jury could not have found that she maintained the apartment because there was no proof that she had dominion or control over the apartment. We disagree. From the large amounts of drugs, drug paraphernalia and money in the apartment, the jury could reasonably infer that the apartment was being used for distributing drugs. Lewis was one of two people living at the apartment and as explained above there was sufficient evidence to prove that she was selling drugs from the apartment. Based on these facts, a reasonable jury could have inferred that Lewis was maintaining the apartment for the purpose of dealing drugs. See Basinger, 60 F.3d at 1405-06.

Lewis, 1999 WL 691041, at *1.

Other factors were considered by the court in Morgan in determining whether the premises were maintained as a crack-house under the federal statute. The court analyzed the evidence presented to determine whether the defendant maintained a crack-house and concluded:

With this background in mind, we turn to whether there was sufficient evidence that Wright maintained the apartment on School Place. On one hand, the record is devoid of evidence that Wright lived at the apartment, leased the apartment, paid rent for the apartment, had such control over the apartment that he could lend it to others, or that the utilities or telephone service were in his name.
This case does not involve an isolated sale of crack from a location. Rather, all the evidence is consistent with Wright having participated in the maintenance of a crackhouse. Wright directed others to the crackhouse; called the location “our spot”; told Officer Webster that Cherry, who resided in the apartment, worked for him; and exercised dominion and control over the apartment by directing another person during a drug transaction and by storing his drugs in a closet in the apartment. Although any of these facts might be insufficient in isolation, they coalesce to support the jury’s finding here that Wright maintained 2939 School Place for the purpose of distributing crack cocaine in violation of Section 856(a)(1).

Morgan, 117 F.3d at 857. Similarly, in United States v. Scull, 321 F.3d 1270 (10th Cir.2003), which, like the instant case, involved evidence obtained from a trash pull, the court reviewed the evidence in the light most favorable to the government and concluded it was sufficient to affirm the conviction. The court explained:

Mr. Scull also contends the government failed to prove he maintained a place for manufacturing and distributing cocaine. In order to convict a defendant of this charge, the prosecution must “prove that [the defendant] (1) knowingly (2) opened or maintained a place (3) for the purpose of manufacturing a controlled substance.” United States v. Higgins, 282 F.3d 1261, 1276 (10th Cir. 2002). Based on the evidence already cited in this opinion, Mr. Scull’s claim fails. Evidence obtained from the trash pulled from Mr. Scull’s home indicated drugs were being manufactured there. Drying and packaged crack cocaine were found in Mr. Scull’s home. Mr. Scull’s co-conspirators were seen coming to and from his home in the course of completing drug sales. Taking the evidence with all the reasonable inferences to be drawn therefrom most favorably to the government, the evidence was sufficient to warrant Mr. Scull’s guilty verdict for maintaining a place for the manufacture and distribution of drugs.

Id. at 1284.

Decisions from state courts in other jurisdictions also rely on various factors to determine whether an individual keeps or maintains premises utilized as a place for illegal drug use. In State v. Kelly, 120 N.C.App. 821, 463 S.E.2d 812 (1995), for example, the court affirmed a conviction for maintaining a dwelling house for drugs under a statute almost identical to Florida’s section 893.13(7)(a)5. The North Carolina statute made it unlawful for any person

[t]o knowingly keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article....

N.C.G.S. § 90 — 108(a)(7) (1993). The court found the following evidence sufficient beyond a reasonable doubt to convict the defendant of violating this statute:

Defendant Gardner also argues that the trial court erred in denying his motion to dismiss and set aside the jury verdict for the charge of intentionally keeping and maintaining a dwelling for the purpose of using, keeping, or selling controlled substances. N.C.G.S. § 90-108(a)(7) (1993). Defendant Gardner contends there was insufficient evidence to support this charge.
The record shows that defendant possessed a key to the house at 1225 Jamestown Court and used it to go in and out of the house. Inside the house, in the upstairs master bedroom, a letter from Integon Insurance was found addressed to defendant at 1225 Jamestown Court. Scales and baking soda, items commonly used to cut and package cocaine, were located in the kitchen of the house. Potpourri similar to that found in the package containing cocaine was also found in a ziplock bag in the home. The package was addressed to Randy Brown, and defendant stated that he was Randy Brown when asked by an undercover officer. Defendant also listed 1225 Jamestown Court as his address after he was arrested.
Although this evidence is not overwhelming, a reasonable person could infer from the evidence that defendant was in control of and maintained the residence for drug activities.

Kelly, 463 S.E.2d at 815.

All of these cases clearly establish that there are numerous factors that should be considered in determining whether an individual keeps or maintains premises for illegal drug use. They are also significant in that each presents facts and circumstances very similar to the facts established by the evidence presented in the instant case. The factors established by a preponderance of the evidence presented in the instant case certainly support the trial court’s conclusion that it was more probable than not that Ashley did “keep or maintain” a residence for illegal drug use in violation of section 893.13(7)(a)5. Specifically, I believe that the factor of control of the premises, which I have previously indicated is a necessary factor to prove maintenance under section 893.13(7)(a)5., is clearly established.

The evidence reveals that the police department received numerous complaints from Ashley’s neighbors for a period of a month to a month-and-a-half about continuous traffic in and out of the residence where Ashley lived. The police conducted two trash pulls from the residence and discovered cannabis, baggies, mail addressed to Ashley, and other paraphernalia. Armed with this information, the police obtained a search warrant that was executed on March 5, 2004. When the police entered the residence, they found Ashley and his girlfriend upstairs. Although two other occupants were located in another bedroom, Ashley was the only permanent resident in the house. Ashley’s girlfriend was found to be in possession of cocaine, some of which she tried to flush down the toilet. In the living room, in plain view, the police found cannabis on the television stand. A one-gram baggie containing cannabis was discovered next to some of Ashley’s personal items on an end table. Other one-gram baggies were discovered in the dining room area and in the kitchen. Two scales used for weighing drugs were also found in the kitchen, as was mail addressed to Ashley. The police also recovered $1,900 in cash from Ashley. Not only does the evidence establish that Ashley lived on the premises, it also shows that Ashley gave permission for his brother to move in and stay. Further, according to Ashley’s own testimony, Ashley ordered his brother not to bring drugs into the house and he issued the same edict to his own girlfriend when he allowed her to stay overnight.

The majority suggests, albeit in a footnote, that Ashley’s exercise of control over his residence by telling his girlfriend and brother not to bring drugs into his house implies that he may not have been utilizing his residence for the purpose of illegal drug use. This suggestion is obviously relegated to a footnote because, as I previously mentioned, the majority concedes in its opinion that the trial court correctly ruled that Ashley knew that his house was being resorted to by people using controlled substances. The majority properly makes this concession for the following reason: with drugs and paraphernalia (including drug scales) strewn throughout the house, cocaine on the person of his girlfriend with whom Ashley shared a bedroom, drugs found in Ashley’s trash, and numerous complaints from neighbors about the comings and goings of individuals to and from Ashley’s residence at all hours of the day and night, not even Ashley argued that the residence was not utilized for the purpose of illegal drug use. Moreover, if anyone knew what was going on in his house it was Ashley because as a condition of his community control supervision, Ashley was confined to that residence and could not leave unless authorized by his community control officer. Despite the fact that the only permanent resident of the house found by the police was Ashley, Ashley’s only defense as presented, rather inarticulately, to the trial court during closing argument by Ashley’s attorney was that Ashley “was just a man up there asleep in bed when the cops came in and found somebody else had brought stuff in there in a house that there’s been no evidence that he had authority to control any of the ingoings and outgoings at any time of [sic].” As for Ashley’s girlfriend, although Ashley testified that he did not know she had possession of cocaine the night he was arrested, the trial court specifically found that testimony was not credible. Clearly Ashley knew that she had possession of cocaine the night he was arrested and the fact that she was allowed to bring drugs into his residence at that time shows, at least to me, that he exercised control over the residence and the flow of drugs in and out of it.

Drawing all reasonable inferences from the evidence in favor of the trial court’s decision, as we must, it makes little sense to me to suggest that a person does not control the residence he lives in when he is confined there as a condition of community control, allows people to stay there that he knows utilize the residence for illegal drug use, allows drugs and paraphernalia into his house and permits it to be strewn about in various rooms, directs when individuals may and may not bring drugs into his house, and is the only permanent resident the police find in the house. I firmly believe that there is competent substantial evidence to establish that Ashley controlled his residence. In addition to control, other factors sufficiently established by the evidence include duration, acquisition of the premises as a residence, continuity, and a degree of supervision of those allowed by Ashley to stay on the premises. In my view, these factors clearly show that Ashley kept or maintained the premises under section 893.13(7)(a)5.

The majority emphasizes that there was no evidence that Ashley owned or leased the premises. Unlike the majority, I do not believe that ownership or even a leasehold interest are necessary ingredients, and I agree with the decisions previously discussed that say so as a matter of law. See Morgan, 117 F.3d at 857-58 (“Drug dealers who maintain a location for the purpose of selling drugs may not avoid conviction under the crackhouse statute by simply ensuring that the lease or deed for the location and the utilities, if any, are not in their name.”) (citing United States v. Wood, 57 F.3d 913, 919 (10th Cir.1995); United States v. Hoivell, 31 F.3d 740, 741 (8th Cir.1994); United States v. Lancaster, 968 F.2d 1250, 1254 (D.C.Cir.1992)). In my view, and as the cases I have discussed indicate, it makes little sense to suggest that an individual who keeps or maintains a drug-house will find it beneficial to reveal his or her involvement in the crime by placing his or her name on a deed or lease of the premises where illegal drugs are used.

Moreover, the majority seems to discount the fact that Ashley lived on the premises. I believe, in accordance with the cases I have discussed, the fact that Ashley lived on the premises is a significant factor that should be considered in determining whether he kept or maintained the premises. Indeed, as previously mentioned, standard conditions of community control supervision require that the defendant maintain a residence, that the defendant notify his or her probation officer of the address, and that the defendant remain at that location and allow supervisory visits in the home. See § 948.101(a)(2), Fla. Stat. (2004); see also Fisher v. State, 778 So.2d 437 (Fla. 5th DCA 2001) (holding that a willful and substantial violation of community control occurred when defendant failed to remain confined to his residence).

I also note that living on the premises is a significant factor in other statutory contexts where “keep or maintain” is an element the state must establish in order to prove a violation of the particular statute. In Polston v. State, 137 So.2d 602 (Fla. 2d DCA 1962), for example, the court held:

The defendant contends next that the evidence did not sufficiently establish that he did keep or maintain the kind of place condemned in Sec. 568.04, Fla. Stat., 1959, F.S.A., which reads as follows:
“It is unlawful for anyone to keep or maintain a place where intoxicating liquors, wines or beer are sold in any county that has voted against the sale of intoxicating liquors, wines or beer.”
In the trial of this case the defendant testified that he lived at the place in question and that he had allowed his brother-in-law, Scranton, to live in the smaller house just to the rear of the defendant’s house. He further testified that he knew that Scranton was selling liquor in the smaller house. The witnesses for the state all testified that intoxicating liquor was sold on the premises of the defendant. From the record there is no question that a jury could find that the defendant’s control over the premises was sufficient to establish beyond a reasonable doubt that he did ‘keep and maintain a place’ of the variety condemned by Sec. 568.04, supra.

Id. at 604.

The majority makes a point of disclosing that while the police found both cocaine and marijuana in Ashley’s residence when executing the warrant, “none was found on Ashley’s person.” But undisclosed by the majority is the obvious reason no drugs were found on Ashley’s person — he was found by the police naked exiting a bedroom he shared with his girlfriend who, as previously indicated, was found in possession of cocaine which she subsequently attempted to flush down a toilet.

Based on the relevant factors that determine whether an individual keeps or maintains a residence as a drug-house and after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the trial court’s decision, I believe that there is substantial competent evidence to establish by a preponderance of the evidence that Ashley did violate section 893.13(7)(a)5. Having properly found the new violation was committed, the trial court did not abuse its discretion in revoking Ashley’s community control.

I conclude my discussion with the following observation: having discussed numerous cases from other jurisdictions that considered the issue we now consider based on statutory provisions very similar to section 893.13(7)(a)5., I find it quite remarkable that, based on less evidence or evidence markedly similar to that considered by the trial court in the instant case, those courts held that the government proved beyond a reasonable doubt that the defendant did keep or maintain the premises as a drug-house. In the final analysis, I think the majority has failed to properly evaluate the evidence in the instant case and has heaped upon the preponderance of the evidence standard far too much extra weight, thereby imposing on the State a standard more burdensome than proof beyond a reasonable doubt. Accordingly, I respectfully dissent.

      . There is much in the dissent to agree with; however, most of the federal cases cited involve some evidence of sale or distribution of drugs by the defendant and establish control for the purpose of sale or use of drugs. Here, there is no proof of any legal right to control the premises and limited proof of Ashley's (apparently ineffective) efforts as a'resident to control the activities occurring there. There is no proof that Ashley possessed any drugs on the premises or otherwise, no direct evidence he knew drugs were present and there is certainly no evidence that he maintained the premises for the purpose of drug sales or use. In fact, the evidence of "control” relied on by the dissent is that Ashley told his brother and girlfriend not to bring drugs onto the premises. This fact is either true for both "control” and for "purpose,” or for neither. If taken as true, the dissent is correct that it is some evidence of control; however, it negates the notion that the purpose of maintaining the residence was sale or use of drugs.

      . See United States v. Morgan, 117 F.3d 849, 857 (5th Cir.1997) ("We emphasize that whether a defendant has ‘maintained’ a place is necessarily a fact-intensive issue that must be resolved on a case-by-case basis. In doing so, we must be mindful of the conditions under which crackhouse operations are often conducted.”).

      . In the same footnote, the majority asserts that there is no evidence that Ashley maintained his residence for the purposes of drug sales. But evidence of drug sales is not necessary to establish a violation of section 893.13(7)(a)5. All that is necessary is that Ashley keep or maintain his residence for the purpose of using controlled substances. This is what Ashley was accused of doing and this is what the State proved by a preponderance of the evidence. I also reject the majority's contention that in the federal cases I have discussed, control was established because there was evidence of drug sales. Those cases deal with instances where a defendant was criminally charged with using or maintaining premises for the purpose of "manufacturing, distributing, or using any controlled substance.” 21 U.S.C. § 856(a)(1) (emphasis added). Those cases are directly on point and address the very issue that is before us in the instant case. Unlike the majority, I find them very persuasive.


author: LAWSON, J.

text:
    Josette OCTAVE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-830.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Josette Octave timely appeals her conviction for aggravated manslaughter of a child, challenging the trial court’s denial of a motion to suppress her statements to law enforcement. We affirm in part, and reverse in part.

Octave’s motion to suppress dealt with statements that she made on two separate occasions. With respect to the first set of statements, we affirm the trial court’s ruling. Because Octave was not in custody at the time she made these voluntary statements, no Miranda warnings were necessary. Therefore, the motion alleging a violation of Octave’s rights under Miranda was properly denied.

With respect to the second set of statements, Octave was in custody and Miranda warnings were required. Although law enforcement did apprise Octave of most of her rights prior to questioning, the officers only explained to her that she had a right to counsel, generally, and never said anything that could fairly be understood as apprising Octave of her right to have a lawyer present during questioning. Therefore, reversal is clearly required. See Maxwell v. State, 917 So.2d 404 (Fla. 5th DCA 2006).

We would note that Maxwell was released well after the trial court’s ruling in this case. In addition, no case directly on point was supplied to the trial judge. We are confident that if given the opportunity to review the facts of this case in light of Maxwell, the trial judge would have reached the same conclusion that we reach — Maxwell controls and requires suppression of Octave’s second set of statements to law enforcement.

AFFIRMED IN PART AND REVERSED IN PART.

THOMPSON and SAWAYA, JJ., concur.

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


text:
    Clifford MILLIKEN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-69.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.
    James Russo, Public Defender and Jeffrey M. Leukel, Assistant Public Defender, Sanford, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Clifford Milliken, Jr. seeks a belated appeal. Unfortunately, the petition is facially insufficient. The petition fails to allege that Mr. Milliken made a timely request for an appeal which was not honored by counsel. See Fla. R.App. P. 9.141(c)(3)(F); State v. Trowell, 739 So.2d 77 (Fla.1999); Moore v. State, 910 So.2d 947 (Fla. 5th DCA 2005). Additionally, the oath is legally insufficient because it states that the facts contained in the petition are “true and correct to the best of his knowledge.” See Moore. See also Scott v. State, 464 So.2d 1171 (Fla.1985). Accordingly, we deny the petition without prejudice to Mr. Milliken to file a new petition containing sufficient allegations and a sufficient oath. See Vasquez v. State, 901 So.2d 425 (Fla. 5th DCA 2005); Raley v. State, 884 So.2d 501 (Fla. 5th DCA 2004).

PETITION DENIED WITHOUT PREJUDICE.

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


text:
    William D. COSBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-32.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.
    William D. Cosby, Sanderson, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The denial of the defendant, William D. Cosby’s Rule 3.800(a) motion is affirmed. The defendant has filed twenty (20) appeals and petitions in this court relating to his convictions and sentences in Orange County, Circuit Court Case Numbers 2001-CF-14134, 2002-CF-2531, 2002-CF-3454, and 2002-CF-6421. He was ordered to show cause why he should not be denied further access to this court for any proceedings to further attack those convictions and sentences. See State v. Spencer, 751 So.2d 47 (Fla.1999).

The court has carefully reviewed the defendant’s response to the court’s order and finds no merit thereto. Accordingly, in order to preserve judicial resources, the defendant is prohibited from filing any further pro se pleadings, motions, petitions or other filings in this court relating to Orange County Circuit Court, Case Numbers 2001-CF-14134, 2002-CF-2531, 2002-CF-3454, and 2002-CF-6421. Any further proceedings filed in this court relating to the defendant’s convictions and sentences in these cases must be reviewed and signed by an attorney who is a duly licensed member of The Florida Bar. The Clerk of the Fifth District Court of Appeal is directed to not accept any further pro se pleadings from the defendant, William D. Cosby, in the above-styled cases.

AFFIRMED.

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


text:
    Inez H. SILVERA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-234.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.
    Inez H. Silvera, Brooksville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Inez EL Silvera seeks a writ of mandamus, alleging that the trial court has unreasonably delayed in ruling on her Florida Rule of Criminal Procedure 3.800(a) motion to correct sentence filed December 19, 2005. On February 28, 2006, the circuit court entered an order holding the rule 3.800(a) motion in abeyance. The circuit court found that it lacked jurisdiction because Silvera filed a notice of appeal from an order denying a previous 3.800(a) motion for jail credit and the appeal is still pending.

If the present rule 3.800(a) motion raised the same jail credit issue that was raised in the previous 3.800(a) motion, then the trial court was correct in not ruling on it. Cf. Tellas v. State, 811 So.2d 756 (Fla. 1st DCA 2002) (holding that it was error to deny rule 3.850 motion as successive while appeal from previous 3.850 motion was pending; instead, trial court should have dismissed present motion raising the same claim pending on review for lack of jurisdiction). On the record available to us, we cannot tell. However, this Court affirmed the order denying Silvera’s previous rule 3.800(a) motion on February 28, 2006, the same day that the circuit court entered the order holding the present rule 3.800(a) motion in abeyance. Therefore, w$ deny the instant petition for writ of mandamus without prejudice to refile in sixty days if the most recent rule 3.800(a) motion is not ruled on within that time.

PETITION DENIED.

SHARP, W„ ORFINGER and MONACO, JJ., concur.


author: SALCINES, Judge.

text:
    Albert MOSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2325.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Albert Moss appeals his convictions and sentences for lewd and lascivious act in the presence of a child under sixteen (counts one and three), lewd or lascivious battery (counts two and four), and lewd or lascivious molestation (counts five and six). We affirm, without discussion, the convictions on all counts as well as the sentences for counts one and three. For reasons further explained in this opinion, we reverse the sentences in counts two, four, five, and six, and remand those for resentencing.

The convictions arising from counts two, four, five, and six fell within the purview of the Criminal Punishment Code, and the sentences to be imposed were calculated on a Code scoresheet. See § 921.0024, Fla. Stat. (1999, 2000). In this appeal, Moss challenges the scoring of victim injury points for penetration. Moss preserved his challenge by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Moss correctly argues that in scoring victim injury points for penetration, the trial court ran afoul of the constitutional concerns expressed in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

As charged, the jury could find Moss guilty without necessarily finding that penetration had occurred. The verdict form indicated that Moss was found guilty as charged without indicating whether the finding was based on contact or penetration. Thus, the trial court did not have the authority to score victim injury points for penetration. See Whalen v. State, 895 So.2d 1222 (Fla. 2d DCA 2005).

The trial court sentenced Moss to twenty-five years’ incarceration followed by five years’ probation on his convictions for counts two, four, five, and six. Each of the foregoing convictions was for a second-degree felony with a statutory maximum sentence of fifteen years’ incarceration. See §§ 800.04, 775.082(3)(e), Fla. Stat. (1999, 2000). Those counts were scored on a Code scoresheet which reflected 160 points for two instances of penetration and 80 points for two instances of sexual contact. Once victim injury points for penetration (160 points) are excluded, and victim injury points for contact (80 points) are added in their place, at most Moss scores 300 total sentence points, thereby making his lowest permissible sentence 204 months’ (17 years’) incarceration as to each of the four counts at issue. See Behl v. State, 898 So.2d 217, 221-23 (Fla. 2d DCA 2005) (reversing sentence imposed under sentencing guidelines but allowing, on remand, assessment of points for contact since jury’s verdict necessarily required finding of at least sexual contact).

Hence, after victim injury points for penetration are excluded, the sentences imposed by the trial court in this case exceeded those authorized by the Code. See § 921.0024(2); Butler v. State, 838 So.2d 554, 556 (Fla.2003) (“If the lowest permissible sentence under the Code exceeds the statutory maximum sentence as provided in section 775.082, the sentence required by the Code must be imposed.”). Accordingly, we reverse the sentences imposed as to the convictions for counts two, four, five, and six.

Affirmed in part, reversed in part, and remanded for resentencing.

NORTHCUTT and SILBERMAN, JJ., concur.

      . The sentences for counts one and three were scored on a separate Sentencing Guidelines Scoresheet and are not challenged in this appeal.

      . This calculation assumes that the trial court would include victim injury points for contact.


text:
    Raymond McKAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4229.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.
   STRINGER, Judge.

Raymond McKay appeals the postcon-viction court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of claims two and three, without comment, and reverse the postconviction court’s denial of claim one.

In claim one of his rule 3.850 motion, McKay alleged his convictions for both third-degree murder and vehicular homicide violated double jeopardy because he caused a single death. The postconviction court denied this claim finding that the offenses did not violate double jeopardy because vehicular homicide and third-degree murder each contained elements that the other offense did not. Although it is true that vehicular homicide and third-degree murder require different elements of proof, the postconviction court’s finding was incorrect. See Rodriguez v. State, 875 So.2d 642 (Fla. 2d DCA 2004) (holding only one homicide conviction and sentence may be imposed for a single death).

In response to this court’s order, the State argued McKay was not entitled to relief because his sentences were the result of a negotiated plea agreement. See Novaton v. State, 634 So.2d 607 (Fla.1994) (holding a defendant’s acceptance of sentencing pursuant to a bargained for plea agreement waives any double jeopardy violations). While the State is correct, see Richardson v. State, 885 So.2d 999 (Fla. 3d DCA 2004), there is nothing in the record demonstrating McKay’s plea was the result of a negotiated agreement. Therefore, we reverse the order of the postcon-viction court and remand for either' an evidentiary hearing or attachment of those portions of the record conclusively refuting this claim.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.


text:
    David Ezra JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4066.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.
    Victoria A. Holmberg, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

David Ezra Jackson appeals the denial of his petition for declaratory judgment on the ground that he does not qualify for sexual predator designation. He filed this petition in a Hillsborough County court despite the fact that the designation was imposed by a court in Pinellas County. We affirm without prejudice to any right Mr. Jackson might have to file a motion challenging this designation in the court that imposed it.

Affirmed.

ALTENBERND, NORTHCUTT, and CANADY, JJ„ Concur.

      . We note that this court has recently held that a challenge to a sexual predator designation may be brought in a postconviction motion. King v. State, 911 So.2d 229 (Fla. 2d DCA 2005).


author: SHARP, W., J. LAWSON, J.,

text:
    Joseph BARSTAD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-647.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.
    Joseph Barstad, Panama City, pro se.
    No Appearance for Respondent.
   SHARP, W., J.

Barstad, an inmate in state prison in Bay County, seeks a writ of prohibition on speedy trial grounds. He alleges that the Lake County Sheriffs Office filed a detain-er to hold him on August 22, 2005. On September 16, 2005, he filed a demand for speedy trial, pursuant to Florida Rule of Criminal Procedure 3.191(b), apparently in Lake County, relating to the Lake County charges. The day after the speedy trial time expired, he filed a notice of expiration, but the circuit court has taken no action in his case.

Prohibition is an extraordinary remedy and may not be granted unless the appropriate circumstances are established. Barstad does not allege that he filed a motion for discharge, pursuant to Florida Rule of Criminal Procedure 3.191(p)(3). That rule indicates that a defendant who has not been brought to trial within the 15 day recapture period shall be discharged from the crime, on motion of the defendant or the court.

This court cannot review by prohibition the speedy trial issue until the trial court has denied a motion for discharge. That order should be included in an appendix attached to the petition. See Sherrod v. Franza, 427 So.2d 161 (Fla.1983); Lail v. Anderson, 665 So.2d 312 (Fla. 2d DCA 1995). Accordingly, we deny the petition for prohibition without prejudice to Bar-stad to file a motion for discharge in the circuit court.

Petition for Writ of Prohibition DENIED.

MONACO, J., concurs.

LAWSON, J., concurs specially with opinion.

LAWSON, J.,

concurring specially.

I write separately simply to point out that it does not appear from his allegations that Barstad is entitled to relief in the trial court either. Barstad claims to have filed his demand for speedy trial after a detain-er was “placed against” him. However, the lodging of a detainer does not trigger running of the “speedy trial” time limitations set forth in Florida Rulé of Criminal Procedure 3.191. Edwards v. Allen, 603 So.2d 514 (Fla. 2d DCA), review denied, 613 So.2d 3 (Fla.1992).

      . Barstad's allegations are sketchy and he did not include an appendix.


author: SAWAYA, J.

text:
    Carolyn H. FOSTER f/k/a Carolyn H. Pearson, Appellant, v. Scott PEARSON, Appellee.
    No. 5D05-4111.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.
    Billy Thomas, W. Melbourne, for Appellant.
    Maureen Monaghan Matheson, of Rein-man Matheson Vaughan & Durham, P.A., Melbourne, for Appellee.
   SAWAYA, J.

The mother appeals the trial court's order temporarily changing custody of the parties’ child to the father after the mother announced her intention to move from Brevard County to the west coast of Florida without the requisite consent of the father or court order, in violation of the parties’ marital settlement agreement. She argues, and the father concedes, that the trial court erred in changing temporary custody without making findings as to both a substantial change of circumstances and the best interests of the child. See, e.g., Wilson v. Roseberry, 669 So.2d 1152 (Fla. 5th DCA 1996). They disagree, however, on the next step.

The mother, relying on certain statements made by the trial court at the hearing, asserts that the court found no substantial change had occurred and argues that accordingly, outright reversal of the order changing custody is required. The father, on the other hand, contends that remand for findings is the correct cure, citing Glover v. Glover, 820 So.2d 324, 325 (Fla. 5th DCA 2001), wherein the trial court ordered a change of temporary custody without making sufficient findings as to one of the children involved. In Glover, this court remanded for entry of appropriate findings of fact based upon evidence in the record, cautioning:

To the extent that the mother failed to carry her evidentiary burden on the issues in controversy, she should not be permitted to benefit by the remand and receive a second opportunity to prove her case. Thus, our remand is for the limited purpose of making factual findings only as to those matters not addressed originally.

Id.

Review of the transcript in the instant case shows that the mother mischaracter-izes the trial court’s statements. The trial court simply refused to make any findings whatsoever, repeatedly citing the fact that it was addressing a temporary change of custody, not a permanent one. This distinction is incorrect, as this court has expressly stated that even temporary changes of custody must be supported by findings as to both substantial change in circumstances and the best interests of the child. Glover; Wilson.

Therefore, we hereby remand with instructions for the trial court to enter findings of fact, based upon record evidence, to support the temporary change in custody.

REMANDED with instructions.

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

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).


text:
    Patrick Jerom KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2879.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Trocola v. State, 867 So.2d 1229, 1230 (Fla. 5th DCA 2004) (holding that “the denial of a motion for continuance is within the sound discretion of the trial court, and the action of the court will not be disturbed on appeal unless there is a clear showing that there has been a ‘palpable’ abuse of discretion to the disadvantage of the accused, or, unless the rights of the accused might have been jeopardized by the continuance determination”).

THOMPSON, SAWAYA and LAWSON, JJ., concur.


text:
    T.R., n/k/a T.K., Mother of C.R., D.R., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-430.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.
    Ryan Thomas Trüskoski of Ryan Thomas Trüskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PER CURIAM.

We affirm the lower court’s order that terminates the parental rights of Appellant as to two of her children, C.R. and T.R. We also conclude that the Department established grounds to terminate Appellant’s rights in her third child, D.R. However, in light of our decision to reverse the lower court’s order terminating the parental rights of D.R.’s father in 5D04-4148, who is now married to Appellant, we reverse that portion of the lower court’s order that terminated Appellant’s rights in D.R. and remand this cause for further proceedings under section 39.811(6), Florida Statutes (2005), consistent with the holding in N.M. v. Department of Children & Family Services (In re V.M.), 893 So.2d 595 (Fla. 2d DCA 2005).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

GRIFFIN, SAWAYA and TORPY, JJ, concur.


author: TORPY, J.

text:
    J.K., Father of D.R., a Child, Appellant, v. DEPARTMENT OF CHILDREN, Appellee.
    No. 5D04-4148.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   TORPY, J.

Appellant’s parental rights were terminated as to his child, D.R., based on abandonment. We reverse.

Appellant, while living in Georgia, met and dated D.R.’s mother, T.K, for a short period of time before he moved to Florida. Unbeknownst to Appellant, he had impregnated T.K., who gave birth to D.R. in October 1999. Because T.K. believed that another man, R.M., was D.R.’s, biological father, she did not inform Appellant of her pregnancy or the child’s birth. R.M. was named as father on D.R.’s birth certificate.

In October 2001, the Department sheltered all three of T.K’s children based on T.K.’s drug addiction. At that time, the Department of Children and Families filed a petition for dependency naming T.K. and R.M., but not Appellant.

In early 2002, R.M. was informed by T.K. that he might not be D.R.’s father. As a result, the court ordered paternity testing of R.M. and M.C., another putative father named by T.K. The paternity test revealed that neither R.M. nor M.C. was D.R.’s biological father. The court adjudicated D.R. dependent as to T.K. in December 2001. T.K. was ordered to complete a case plan requiring, among other things, that she undergo periodic drug testing. When T.K. repeatedly violated her case plan, the Department proceeded to terminate her parental rights.

Sometime in October 2003, T.K. and Appellant met by happenstance. It was at that time that T.K. first revealed to Appellant that he might be the father of D.R. As a result, Appellant voluntarily appeared at the termination hearing held later that month. At that hearing, the court ordered a paternity test, allowed the Department to amend its petition to add Appellant as a party, and appointed counsel for Appellant. The paternity test revealed that Appellant was in fact the biological father of D.R. In December 2003, Appellant and T.K. leased a house together; they married the next month.

When the Department filed its amended petition to name Appellant as a party, instead of seeking that D.R. be declared dependent as to Appellant, the Department sought to terminate Appellant’s parental rights. The Department’s basis for termination was that, because Appellant married T.K. at a time that Appellant knew T.K. was not in compliance with her case plan, Appellant had engaged in conduct that threatened the well-being of the child irrespective of the provision of services. § 39.806(l)(c), Fla. Stat. (2005).

Trial was conducted over numerous days that spanned an interval of several months. At its conclusion, the lower court rejected the Department’s theory as a valid ground for termination of Appellant’s rights but granted the petition nevertheless on the basis that Appellant had abandoned the child. The court reasoned that Appellant had abandoned the child by not affirmatively pursuing the possibility that he was the father of a child with T.K.

We conclude that the trial judge erred. Although Appellant raises several points on appeal, we find it necessary to address only two such points — the failure of the Department to: (1) plead, or (2) prove abandonment by Appellant.

Clearly, the Department never pled or argued abandonment as a basis for termination of Appellant’s rights, nor was this issue tried by the consent of the parties. Under these circumstances, the order must be reversed. M.D. v. Dep’t of Children & Families, 871 So.2d 311 (Fla. 5th DCA 2004). Furthermore, the court’s finding of abandonment was not predicated on substantial competent evidence because no evidence was adduced that established any willful rejection by Appellant of his parental obligations. Appellant was unaware that he was the father of a child with T.K. until October 2003. By that time, D.R. had been declared dependent and placed with foster parents, both without notice to Appellant. When Appellant became aware that he might be the father of D.R., he appeared, submitted to testing and fought the Department’s efforts to terminate his parental rights.

REVERSED.

GRIFFIN, J., concurs.

SAWAYA, J., concurs in result only.


author: DAVIS, Judge.

text:
    Jonathan DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5937.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.
   DAVIS, Judge.

Jonathan Daniels appeals the postcon-viction court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court summarily denied the motion, finding that claims one through three were addressed and denied in a prior order, that Daniels failed to correct the facial insufficiency of claim four, and that his newly asserted claims were successive. We affirm the postcon-viction court’s findings insofar as they relate to claims one through three and the newly alleged claims.

However, we conclude Daniels cured the facial insufficiency of the ineffective assistance allegation contained in claim four. See Cordes v. State, 842 So.2d 874, 875 (Fla. 2d DCA 2003). Because the postcon-viction court did not refute this claim, we reverse and remand for the postconviction court to either attach records that conclusively refute Daniels’s claim or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WHATLEY, JJ., Concur.