author: PER CURIAM.

text:
    Cruz Elena ALVAREZ, Appellant, v. UNICCO and Travelers, Appellees.
    No. 1D06-1465.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Rehearing Denied June 22, 2007.
    Martha D. Fornaris of Fornaris <& Associates, P.A., Coral Gables, and Bill McCabe of Shepherd, McCabe & Cooley, Long-wood, for Appellant.
    Robin Ross, Ft. Lauderdale, and William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, Winter Park, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, Cruz Elena Alvarez, who claimed sustaining workplace accidents on February 28, 2003 and on January 1, 2004, appeals an order of the judge of compensation claims which denied her claim for benefits on the ground that she knowingly and intentionally made a false or misleading statement for the purpose of securing workers’ compensation benefits. See §§ 440.09(4) and 440.105(4)(b)l, Florida Statutes (2003). Claimant argues that she is entitled to workers’ compensation benefits until the date that the judge of compensation claims found that she did make a knowing and intentional misrepresentation or misstatement. Alvarez, who does not dispute the judge’s findings, cites no authority for holding that the judge erred in this case in not awarding benefits for the period prior to the entry of the order. Further, neither this court’s decision in Horizons Painting v. Lessard, 688 So.2d 941 (Fla. 1st DCA 1997), nor our decision in Pavilion Apartments v. Wetherington, 943 So.2d 226 (Fla. 1st DCA 2006), require an award by the judge of compensation claims for a period preceding the determination of a violation of section 440.09(4).

Accordingly, the order of the judge of compensation claims is AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Michael MILLER and Constance Fanning, Appellants, v. Merrily GOODELL, Margaret B. Libbey and Michael J. Swan, Appellees.
    Nos. 4D06-711, 4D06-712.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Rehearing Denied July 10 2007.

      E. Steven Lauer of E. Steven Lauer, P.A., Vero Beach, for appellants.
    Dirán V. Seropian and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Michael J. Swan of Rossway, Moore & Taylor, Vero Beach, for appellee Michael J. Swan.
    Dirán V. Seropian and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee Margaret B. Libbey.
    Canda B. Brown of Jackson, Barkett & Brown, Vero Beach, for appellee Merrily Goodell.
   PER CURIAM.

This is an appeal from two final orders of the trial court finding Audrey Miller totally incapacitated and appointing Michael J. Swan, Esquire (Swan), as plenary guardian of the person and property of Audrey. Appellants raise numerous points on appeal. We affirm on all points and choose to discuss two issues which constitute the crux of the appeal. The first is whether the trial court had personal jurisdiction over Audrey Miller. The second is whether the trial court should have honored Audrey’s preneed Guardianship Declaration appointing her sister, Constance Fanning (Fanning), as her guardian of person and property, instead of attorney Swan.

Merrily Goodell, Audrey’s daughter, filed a petition seeking to have Audrey declared incapacitated and to be appointed Audrey’s guardian. Margaret Libbey (Libbey) was appointed temporary guardian, and Swan served as Libbey’s attorney. Audrey’s sister, Fanning, filed a petition seeking to be appointed Audrey’s guardian. The trial court denied Fanning’s petition and appointed Swan as guardian. Appellants argue that the trial court did not have personal jurisdiction over Audrey, that it violated her right to due process, and it erred when it did not honor Audrey’s preneed Guardianship Declaration.

Personal jurisdiction refers to whether a particular court has legal authority over the respondent or defendant. See Borden v. East-European Ins. Co., 921 So.2d 587, 591 (Fla.2006). Personal jurisdiction is a personal right, and a respondent may consent to personal jurisdiction. See Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998).

A review of the record reflects that Gary Kovacs, Esquire, the attorney representing Audrey, consulted with her and obtained her agreement to consent to the jurisdiction of the court. Audrey’s temporary guardian also consented to the jurisdiction of the court. Therefore the trial court did not err in concluding that it had personal jurisdiction over Audrey in order to resolve this guardianship matter.

In addition to challenging the trial court’s jurisdiction, appellants contend the trial court erred in refusing to appoint Fanning as Audrey’s plenary guardian because Audrey had executed a preneed guardian declaration naming Fanning as Audrey’s alternate preneed guardian. This argument fails for the following reasons: (1) Audrey and her attorneys agreed to the appointment of a neutral professional guardian; and (2) the trial judge determined that the rebuttable presumption that Fanning is entitled to serve as guardian had been overcome,' and that it is not in Audrey’s best interests for Fanning to be appointed plenary guardian.

Appellants contend the standard of review on this issue is de novo. However, the appellate courts have consistently held the standard of review in guardianship proceedings is abuse of discretion. See, e.g., In re Guardianship of Sapp, 868 So.2d 687 (Fla. 2d DCA 2004); In re Guardianship of Schiavo, 851 So.2d 182, 186 (Fla. 2d DCA 2003), rev. denied, 855 So.2d 621 (Fla.2003). This discretion is abused when no reasonable person would take the view adopted by the trial court. Wilson v. Robinson, 917 So.2d 312 (Fla. 5th DCA 2005) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)).

In this case appellants have failed to establish the trial court abused its discretion. Section 744.3045(4), Florida Statutes (2005), provides in pertinent part: “Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.” The trial judge considered the evidence presented but found the rebuttable presumption of the appointment of the designated preneed guardian had been overcome. In conjunction with finding the rebuttable presumption had been overcome, the trial court also considered the application of section 744.312(4), Florida Statutes (2005), which provides:

If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.

The trial court specifically found that it was contrary to Audrey’s best interests to appoint Fanning as plenary guardian of the person and property.

Affirmed.

STEVENSON, C.J., HAZOURI and MAY, JJ., concur.


author: BENTON, J.

text:
    Jimmy GRAY and Frances C. Gray, Appellants, v. Margaret M. GRAY, Jay Raymond Falocco, Mountain View Mortgage Company, Jimmy A. Gray, Janet M. Linn, Watson Custom Home Builders, Inc., and Branch Banking and Trust Company, Appellees.
    No. 1D06-4731.
    District Court of Appeal of Florida, First District.
    April 26, 2007.
    Rehearing Denied June 21, 2007.
    Frederick R. Brock of Gartner, Brock and Simon, Jacksonville, for Appellants.
    Ronald J. Davis, II of the Law Offices of Ronald J. Davis, II, P.A., Jacksonville, and Ross T. Clark, Jacksonville, for Appellees.
   BENTON, J.

Jimmy and Frances C. Gray appeal a temporary injunction entered without notice to them. Whether or not the temporary injunction without notice was, as appellants contend, technically deficient, subsequent events have overtaken it: Before they appealed it, Jimmy and Frances C. Gray, defendants below, moved to dissolve the temporary injunction without notice, and participated in an evidentiary hearing on their motion to dissolve. As a result, the temporary injunction without notice was modified (and is subject to further modification once the proceedings precipitated by appellant’s motion to dissolve have run their course). Accordingly, we dismiss as moot the appeal from the temporary injunction entered without notice.

I.

In her complaint below, appellee Margaret M. Gray alleged that she was a seventy-three-year-old widow who had been admitted to a nursing home; that, while she was confused and exhibiting symptoms of dementia, and lacked decisional capacity, her brother-in-law, Jimmy Gray, induced her to sign a durable power of attorney, even though members of the nursing staff told him she was not mentally competent to sign such a document; and that, after she had signed the power of attorney and a deed for her house, Jimmy Gray “cleaned out” her bank accounts, cashed her certificates of deposit, sold her house, and purchased vehicles and houses in his and other family members’ names, liquidating and converting in all some $340,000 worth of Ms. Gray’s assets.

Re-alleging these facts and reciting that she had filed an amended complaint against appellants (and others) alleging fraud, fraud in the inducement, breach of fiduciary duty, and conspiracy to commit fraud, Margaret M. Gray filed an Emergency Motion for Injunction to Freeze or Prohibit Transfer or Expenditure of Funds/Assets/Property. No affidavits were attached to this motion. The motion alleged that conversation with the defendants’ criminal defense counsel indicated little was left of her assets, which she had been counting on to maintain her for the rest of her life; and that, without intervention from the court to prohibit the defendants from expending any more of her assets, she would be irreparably harmed. The motion requested that the court grant the injunction without notice to other parties, alleging immediate and irreparable harm, if they were given notice, in that they might move, spend or deplete what remained of Ms. Gray’s assets.

Granting the motion, the Order on Temporary Injunction to Freeze or Prohibit Transfer or Expenditure of Funds/Assets/Property now under review was entered on August 24, 2006. The trial court found Margaret M. Gray faced immediate and irreparable injury, if the temporary injunction was not entered without notice to the defendants, appellants here, because “the actions of the Defendants as alleged thus far indicate that they have no intention of returning Plaintiffs assets to her and she risks becoming] destitute without access to her assets.” On this stated rationale, the trial court ordered that bank accounts of the defendants be frozen and ordered the defendants not to sell, encumber, transfer or expend any assets, funds, or property which had been in Margaret M. Gray’s name prior to May 26, 2006.

II.

Raising grounds like those urged on appeal, the defendants alleged in a motion to dissolve filed on August 29, 2006, that Florida Rule of Civil Procedure 1.610(a)(2) (2006) required endorsing the temporary injunction with the date and hour of its entry, which was not done; that a temporary injunction could only issue without hearing and notice when the facts were shown by affidavits or verified pleadings, but that the amended complaint was neither verified nor accompanied by supporting affidavits; and that a bond was required, but that none was posted in this case. In addition, the defendants argued that the order did not include findings of fact showing that the plaintiff had an inadequate remedy at law or that success was likely on the merits because, by signing the warranty deed and durable power of attorney, Margaret M. Gray “contradicted” the allegations she made in the amended complaint.

On August 30, 2006, before the eviden-tiary hearing took place, Ms. Gray, through her attorney, filed a second, this time Verified Emergency Motion for Injunction to Freeze or Prohibit Transfer or Expenditure of Funds/Assets/Property. The motion made substantially the same allegations as the original motion, and included the following: “The foregoing instrument was acknowledged before me on this 30th day of August, 2006 by Ronald J. Davis, III, who is personally known to me and did take an oath.” (Mr. Davis was Ms. Gray’s attorney, which fact became the basis for a challenge to the verification.) The same day, Ms. Gray also filed four affidavits in support of her renewed, verified motion for temporary injunction.

The trial court entered at least one order after hearing evidence on the motion to dissolve the temporary injunction without notice, which modified the injunction by removing two of the defendants whom the original, temporary injunction had enjoined. The original, temporary injunction without notice, in which the appellants contend deficiencies existed, and which is the subject of their appeal, was thus modified and superseded pro tanto. See generally City Gas Co. of Fla. v. Ro-Mont S. Green Condo. “R”, Inc., 350 So.2d 790, 791 (Fla. 3d DCA 1977).

III.

A temporary injunction may be entered without notice to an opposing party when “it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition,” and the movant certifies to facts explaining why notice should not be required and recounts any attempts to give notice to the opposing party. Fla. R. Civ. P. 1.610(a)(l)(A)-(B) (2006). See also Fla. High Sch. Activities Ass’n, Inc. v. Marsonek, 805 So.2d 868, 870 (Fla. 2d DCA 2001).

Under Florida Rule of Civil Procedure 1.610(a)(2) (2006), “[n]o evidence other than the affidavit or verified pleading” is to be used to support an application for a temporary injunction, if the adverse party is not noticed for (and does not appear at) an evidentiary hearing. The rule requires that an injunction granted without notice define the threatened injury, contain findings demonstrating why the threatened injury may be irreparable, give reasons why the injunction was granted without notice to the opposing party, and include the date and hour of its entry. See Fla. R. Civ. P. 1.610(a)(2) (2006). The rule also specifies that an injunction should not be granted unless the party applying for the injunction gives a bond conditioned on the payment of any costs and damages the opposing party may sustain, if wrongfully enjoined. See Fla. R. Civ. P. 1.610(b) (2006).

Parties against whom a temporary injunction is entered without notice may appeal the injunction. See Fla. R.App. P. 9.130(a)(3)(B) (2006); Hotel-Motel, Rest. Employees & Bartenders Union, Local 339 of Broward County v. Black Angus of Lauderhill, Inc., 290 So.2d 479, 482 (Fla.1974) (“[A] defendant may take an interlocutory appeal from an order issuing a temporary injunction without notice and seek review of the legal sufficiency of the complaint and supporting affidavits. The appellate court may not review the factual matters unless a motion to dissolve is filed and a hearing held.”). And such an appeal may rest on grounds like those Jimmy Gray and Frances C. Gray urge here, viz., that the temporary injunction entered against them without notice should be reversed because it did not state the time (date and hour) it was entered — even though such an injunction does not expire automatically the way temporary restraining orders expired under the prior version of the rule; because the temporary injunction was issued without requiring that a bond be posted; and because it lacked supporting affidavits when issued. See Vargas v. Vargas, 816 So.2d 238, 238 (Fla. 2d DCA 2002) (“The party seeking a temporary injunction without notice must file a verified pleading or affidavit that alleges specific facts showing immediate and irreparable harm and must detail any efforts made to give notice and the reasons why notice should not be required.”).

IV.

But parties against whom a temporary injunction is entered without notice may elect, instead of taking an appeal, to ask the trial court to dissolve the temporary injunction. See Fla. R. Civ. P. 1.610(d) (2006) (“A party against whom a temporary injunction has been granted may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion shall be heard within 5 days after the movant applies for a hearing on the motion.”); Hathcock v. Hathcock, 533 So.2d 802, 804 (Fla. 1st DCA 1988) (“[W]hile a defendant against whom a temporary injunction is entered without notice may seek immediate appellate review, clearly the preferred practice is for the defendant to present the alleged deficiencies to the trial court via a motion to dissolve pursuant to Rule 1.610(d).”). The defendants made this choice by filing Defendants’ Motion to Dissolve Temporary Injunction Entered Without Notice and Without Bond. See generally State v. Beeler, 530 So.2d 932, 933-34 (Fla.1988).

The trial court in Beeler issued a temporary injunction without notice, as was done here, then, after a hearing on a motion to dissolve, refused to alter the temporary injunction in any particular, continuing it in force unmodified. See id. at 933. The case reached the Florida Supreme Court, which discussed options open to litigants against whom a temporary injunction has been entered:

After a trial court issues a temporary injunction, a defendant has two options. He may question the lack of prior notice by immediately appealing the injunctive order ... or he may file a motion to dissolve with the trial court. With the latter option notice becomes irrelevant because the defendant is present, and the burden would be on the plaintiff to show that the complaint and supporting affidavits are sufficient to support the injunction.
Beeler did not [immediately] appeal the injunction. Instead, he elected to have the issue of prior notice reviewed by the trial court on motions to dissolve. Once the opposing party has received the benefit of notice and an opportunity to be heard at a hearing on the motion to dissolve, any issue regarding prior notice is moot. Therefore, the party against whom a temporary injunction without notice is issued may not attack the lack of notice by appealing the order denying the motion to dissolve.

Id. at 934 (citations omitted). Here, too, the parties did not immediately appeal the temporary injunction without notice but “elected to have the issue of prior notice reviewed by the trial court on the motion to dissolve.” Appellants complain about more than lack of notice, but they had an opportunity to be heard — on all matters —at the hearing convened at their instance, during which they could have put Margaret M. Gray’s evidence to the test, and adduced any evidence of their own.

By the time the appeal was filed, the evidentiary hearing on the motion to dissolve had already begun: during a recess, the appellants filed a notice of appeal of the temporary injunction without notice. For reasons that are unclear, the eviden-tiary hearing came to a stop soon thereafter. The facts have still not been fully developed, although Margaret M. Gray presumably put on evidence at the hearing, as the proponent of the temporary injunction. Compare Torok v. Blue Skies Mobile Home Owners Ass’n, Inc., 467 So.2d 474, 475 (Fla. 5th DCA 1985) (quashing injunction where “no proofs whatsoever were offered by appellee” at a hearing on a motion under the prior rule to dissolve a preliminary injunction).

The appellants have not furnished the court with a transcript of the evidentiary hearing, so it is impossible to determine whether evidence supported modifying the injunction, rather than dissolving it. At the same time, by asking for and being afforded a hearing on their motion to dissolve, appellants have rendered their technical complaints about the evidentiary predicate for the original, temporary injunction without notice moot. But see Doss v. Doss, 643 So.2d 1170, 1171 (Fla. 2d DCA 1994) (declining to dismiss appeal from temporary injunction without notice as moot where the order after evidentiary hearing had not been reduced to writing).

VI.

Modeled on the federal scheme, the version of Florida Rule of Civil • Procédure 1.610 in effect from 1980 to 1984 authorized ex parte entry only of temporary restraining orders that automatically expired in ten days: Injunctive relief beyond the ten-day period required an evidentiary showing at a duly noticed hearing. But our supreme court revised Rule 1.610 in 1984, explaining:

Temporary restraining orders entered subject to the rigid time limitations were automatically dissolved when courts were unable to fit the hearings required for imposition of a preliminary injunction into crowded dockets. The revised rule does away with temporary restraining orders and restores the former procedure for temporary and permanent injunctions.

In re Amendments to Rules of Civil Procedure, 458 So.2d 245, 246-47 (Fla.1984) (citations omitted). This revision notwithstanding, a temporary injunction without notice stands on a different footing — even under the amended rule — than an injunction entered, continued, or modified after an evidentiary hearing.

Although current Florida procedures differ significantly from comparable federal procedures, what was said in Connell v. Dulien Steel Prods., Inc., 240 F.2d 414, 418 (5th Cir.1957), a half century ago about temporary restraining orders is not without relevance to temporary injunctions issued under Rule 1.610(a) without notice:

The practical reasons for not generally allowing appeals from temporary restraining orders are that (1) they are usually effective for only very brief periods of time, far less than the time required for an appeal (which accounts for the paucity of cases on this point), and are then generally supplanted by appeal-able temporary or permanent injunctions, (2) they are generally issued without notice to the adverse party and thus the trial judge has had opportunity to hear only one side of the case, and (3) the trial court should have ample opportunity to have a full presentation of the facts and law before entering an order that is appealable to the appellate courts. Where, as here, the duration of the order barely extends beyond 20 days and even though issued after notice (perhaps insufficient) we think it is not a temporary injunction and appealable. Appellant should have waited for another two weeks from the date on which he filed this appeal, at which time the trial court could have disposed of the question. ...

It is also true — under the current Florida procedures, no less than under the federal procedures — that appeals like the present one pose “a real danger that [appellate proceedings] would interfere with continuing [trial] court proceedings.” 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3922.1 at 86-87 (2d ed.1996).

In City Gas, “[t]he principal grounds urged for reversal [we]re alleged defects in the procedures utilized by the chancellor at the time of the entry of the temporary injunction,” but the reviewing court “determine[d] th[e] appeal not on the record as [it] was before the chancellor at the time of the entry of the temporary injunction, but as the record was at the time the motion to dissolve came on for hearing.” 350 So.2d at 791(applying the pre-1980 procedure that was restored in 1984). A motion to dissolve having come on for hearing in the present case, too, we likewise deem it inappropriate to address grounds urged for reversal based on “alleged defects in the procedures utilized by the chancellor at the time of the entry of the temporary injunction” without notice, alleged defects that may no longer inhere in the modified temporary injunction, now that a hearing on the motion to dissolve has been convened. Id.

Dismissed.

BARFIELD and POLSTON, JJ., concur.

      . Because the present appeal is from a non-final order, further proceedings on the motion to dissolve need not await (and may not in fact have awaited) the conclusion of the appeal. See Fla. R.App. P. 9.130(f) (2006) ("In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.”). See generally Citizens Prop. Ins. Corp. v. Scylla Props., LLC, 946 So.2d 1179, 1181-84 (Fla. 1st DCA 2006). No party has offered any reason why the hearing on the defendants’ motion to dissolve ought not proceed to a conclusion in the trial court (if it has not already done so.)

      . One affidavit was filed by Mr. Davis and three affidavits were filed by members of the staff at the nursing home. All attested to the facts alleged in the motion for the temporary injunction. The defendants filed a motion to strike the verified motion for temporary injunction and a motion to strike the affidavits on September 7, 2006.

      . At the evidentiary hearing, the defendants objected, inter alia, to the hearing’s starting two days later than the five-day deadline for hearings held on motions to dissolve injunctions issued without notice. See Fla. R. Civ. P. 1.610(d) (2006). The appellants did not below, however, and do not on appeal, point to any concrete prejudice attributable to the two-day delay in beginning the hearing. When asked how the two-day delay prejudiced them, defendants' counsel argued only and nonspecifically that it was a violation of their due process rights. The defendants acknowledged that the fifth day after the request for a hearing fell on Monday, September 4, 2006, a holiday. They asked to be heard on Tuesday, September 5, 2006, but Ms. Gray's attorney was out of town, and the hearing did not begin until September 7, 2006. The trial court noted the objection and proceeded on the merits until the defendants took this appeal from entry of the original, temporary injunction.

      . That the hearing was for the taking of evidence distinguishes the present case from Jones v. Jones, 761 So.2d 478, 480 (Fla. 5th DCA 2000). The Jones hearing was noticed, not as an evidentiary hearing, but as a hearing on the “legal sufficiency of the temporary injunction and the manner in which it had been procured.” In the present case, the original, temporary injunction gave notice that the hearing was on whether to continue, modify, or dissolve the temporary injunction. A second notice of hearing issued on August 30, 2006 (after the motion to dissolve was filed), specifically scheduled an "Evidentiary Hearing” for September 7, 2006.


text:
    Carl BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1956.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Rehearing Denied June 21, 2007.
    Appellant Carl Barnes, pro se.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Carl Barnes appeals an order dismissing his petition for writ of habeas corpus. Because the petition fails to state a facially sufficient claim for relief pursuant to either Florida Rule of Criminal Procedure 3.850or 3.800(a), we affirm.

As the circuit court explained, a petition for habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief. See Baker v. State, 878 So.2d 1236 (Fla.2004); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001). Given this, the court “must determine whether appellant’s petition states a facially sufficient claim for relief pursuant to either Florida Rule of Criminal Procedure 3.850or 3.800(a).” Id., at 1115.

The court cannot treat Barnes’ habeas corpus petition as a motion filed under rule 3.850because it was not filed within two years of the date his sentence became final. See Fla. R.Crim. P. 3.850(b) (Time Limitations). In addition, the petition is facially insufficient as a 3.850 motion because it does not contain much of the information required by the rule. See Fla. R.Crim. P. 3.850(c) (Contents of Motion).

The petition is also facially insufficient when considered as a 3.800(a) motion. “Rule 3.800(a) is intended to permit the correction only of sentencing errors that are clear from the face of the record, and result in substantive harm to the complainant.” Harris, 789 So.2d at 1115. Barnes makes no allegation that the sentencing error he complains of is clear from the face of the record.

AFFIRMED.

BARFIELD, KAHN and PADOVANO, JJ., concur.


author: STONE, J.

text:
    Michael CLINE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1166.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied June 13, 2007.

      Nellie L. King of The Law Offices of Nellie L. King, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Cline’s conviction of trafficking in cocaine. Cline pled nolo contendere when his motion to dismiss and motion to suppress were denied, reserving his right to appeal the rulings on both motions.

We address objective entrapment due process issues arising out of the involvement of an untested and unmonitored informant, who served as a middleman during a drug transaction and who gave authorities the information leading to Cline’s arrest.

At the motion to suppress hearing, Deputy Chase testified he had previously arrested the informant, Frank Petrone, on cocaine charges. The deputy spoke with Petrone on occasion following the arrest. Their discussions involved generalities concerning avenues of narcotics investigation. He had also referred Petrone to Broward County authorities, as Petrone’s source, Jimmy, was in Broward County.

The deputy recounted learning that Pe-trone knew Cline from being incarcerated together on drug charges. After Cline approached Petrone regarding drug purchases, Petrone introduced Cline to “Jimmy,” and numerous transactions with Jimmy followed.

According to Chase, Petrone told him that Cline would call when he wanted to “go to lunch” with Jimmy:

He told me ordinarily what happens, you know, when he means he is coming down for lunch, it means he is coming down to purchase ... and then Mr. Cline would proceed with the drugs up to, I believe, Brevard County, Cocoa Beach, where he lives.

On the day of this offense, Petrone called Deputy Chase and told him he was on his way down to join Cline in Broward County and was going to “go to lunch.” Petrone told Chase that once the transaction took place, Cline would return home on the turnpike.

Chase advised Petrone to call him “if, in fact, number one, a deal had taken place, and number two, to you know stay behind the vehicle.” He also told Petrone to call him one way or the other to let him know what happened. After speaking -with Pe-trone, Chase notified his supervisor and, at that point, there were “a couple of cars” put on the entrance and exit turnpike ramps up by Southern Boulevard and Okeechobee. When he heard from Petrone again, Petrone gave him his location. Pe-trone described the Cline vehicle and its tag number, informing Chase that Cline was the driver and Mrs. Cline was the passenger. Chase told Petrone to “stay with him somewhat so we can get out behind him.... So he followed him up to Southern Boulevard. I told him he could go because at that point we observed the vehicle and we were with him.”

Chase testified that he had never discussed with Petrone any plan to set it up so that Cline would be arrested on his way back from a Broward buy. Chase said that he did not know if Petrone was acting as a broker on the day in question and did not know if Petrone had pocketed any money as a result of the deal between Cline and Jimmy. As the transaction was not planned in advance, Chase had not told Petrone to come in and be wired, did not instruct Petrone to go to the police department to be debriefed and searched for money or narcotics, or make any other arrangements for what occurred.

Chase acknowledged that as a result of Petrone’s cooperation (both in the instant case and in a subsequent investigation), he recommended, and Petrone received, some benefit to his case, and his co-defendant’s case was nolle prossed.

Cline admitted that these transactions occurred once every four to six months over a four-year span. Cline’s position was that Petrone was his narcotics supplier, Jimmy was Petrone’s source, and it was their normal procedure for Petrone to get out of Cline’s ear and go to Jimmy’s car to get the cocaine, bring it to Cline’s car, and Cline would pay through Petrone. Cline said Petrone charged Cline $1,100 an ounce and that $100 of this was kept by Petrone. Cline claimed that on the date of the incident, Petrone had called him and offered to front one-half of the money for twelve ounces of cocaine, to be repaid by Cline at a later date. Cline stated Petrone never wanted Cline to deal directly with Jimmy because then Petrone would be cut out of the money.

In denying the motion to dismiss and motion to suppress, the trial court found and concluded that:

With regard to the objective analysis of entrapment on due process grounds, when I look at the conduct of law enforcement here, I don’t find anything that strikes me as so egregious as set forth in the case law that I would find it offends a sense of justice, and I do not find that that is a sufficient argument that has been placed before the Court.

In Munoz v. State, 629 So.2d 90 (Fla.1993), the supreme court found that section 777.201, Florida Statutes, eliminated the objective entrapment test set forth in Cruz v. State, 465 So.2d 516 (Fla.1985). The supreme court, in Munoz, found that although

the subjective test set forth in section 777.201 is the test to be applied on the issue of entrapment in the absence of egregious law enforcement conduct.... [I]n the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9, of the Florida Constitution as in Glosson and Williams.

In Glosson, 462 So.2d at 1085, the court found paying an unsupervised informant ten percent of all resulting civil forfeitures from the informant’s investigations constituted a due process violation. The court stated:

The informant here had an enormous financial incentive not only to make criminal eases, but also to color his testimony or even commit perjury in pursuit of the contingent fee. The due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions.

In Williams, 623 So.2d at 463, the court also found a due process violation where the sheriffs department manufactured crack cocaine for use in a reverse sting operation.

Our court has also found objective entrapment based upon certain factual scenarios, all of which we deem distinguishable. In Madera v. State, 943 So.2d 960, 961-62 (Fla. 4th DCA 2006), we found a due process violation where an informant made promises of an intimate relationship if the defendant would assist her in obtaining drugs, the informant indicated the drugs were needed to cope with cancer, and the defendant had no criminal history. In Farley v. State, 848 So.2d 393, 398 (Fla. 4th DCA 2003), we found objective entrapment present where a task force manufactured videos featuring child pornography, and Farley was not involved in any previously known criminal activity.

We have also considered Soohoo v. State, 737 So.2d 1108 (Fla. 4th DCA 1999), and State v. Anders, 596 So.2d 463 (Fla. 4th DCA 1992), relied on by Cline.

In Soohoo, 737 So.2d at 1108, an informant facing a lengthy sentence entered into an agreement with federal officials to facilitate drug deals in exchange for a reduction in his impending sentence. Our concern in that case focused on the methods used by the informant and the lack of supervision. However, it is clear that we deemed Soohoo to be acting as an agent of the authorities and that his conduct was deemed unacceptable government conduct.

In Anders, 596 So.2d at 464, the informant entered into a substantial assistance agreement with the state and agreed to set up persons leading to arrests in exchange for a reduced sentence. He was told by the state and the court that he must procure the arrests prior to a deadline. Id. There, the agent knew there were ongoing communications that should be monitored and the informant was being used to instigate a sting without being monitored or instructed. In Anders, we recognized that the informant was acting as an undercover agent of law enforcement, and his conduct in pushing the defendant into the transaction was deemed governmental conduct which could not be condoned.

Other cases have rejected the objective entrapment defense. In State v. Lopez, 908 So.2d 484, 485 (Fla. 4th DCA 2005) (citing State v. Figuereo, 761 So.2d 1252 (Fla. 3d DCA 2000)), we agreed with the state “that the alleged failure to properly supervise the confidential informant, standing alone, did not amount to a due process violation and establish objective entrapment.” However, we did not detail the facts of the case in that opinion. In Quesada v. State, 707 So.2d 808 (Fla. 4th DCA 1998), the informant set up the defendant with an undercover police officer. We rejected the defendant’s contention that, because the informant made twenty to thirty unmonitored calls to the defendant, the police had engaged in outrageous conduct, finding repeated phone calls alone do not necessitate entrapment as a matter of law. Id. Further, the police had no direct knowledge of those conversations. In Heydel v. State, 583 So.2d 1051, 1054 (Fla. 4th DCA 1991), distinguishing Glosson, we found no due process violation where a detective closely supervised the informant.

The circumstances, here, differ from those cases where objective entrapment was found. This is not a case where the defendant had no prior criminal history or involvement with drugs; this is not a case where the defendant was coerced into the transaction by an unmonitored informant who was working off of a substantial assistance agreement and/or working under a plan in which his designated role was to buy or sell drugs from or to the defendant; and this is not a case where the authorities “fronted” the transaction for the defendant’s purchase.

In this case, we do not find outrageous behavior by the deputy. The informant did not seek out vulnerable subjects in the community at large to induce them to commit a crime. Rather, he simply communicated with a person with a known criminal history who had regularly purchased large amounts of cocaine through him on numerous occasions. The transaction did not even involve the authorities and was not set up at their direction. Had the informant not been able to contact the deputy on his way to the buy, it would have occurred in any event, as it had in the past. Also, the defendant was not pushed, threatened, or tricked into agreeing to the transaction, notwithstanding Cline’s claim that by the informant’s “fronting” part of the buy, he was encouraged to purchase double the amount of his previous buys.

We deem Mendel v. State, 903 So.2d 1027 (Fla. 4th DCA 2005) instructive. There, following the confidential informant’s arrest, he was offered the opportunity to perform substantial assistance for the state. Id. at 1028. Before entering into the agreement, he was sent into the community as a confidential informant (Cl). Id. Wearing a listening device, the Cl met with the defendant to discuss a transaction. Id. The detective monitored the meeting. Id. The Cl and the defendant reached an agreement wherein the Cl would purchase Ecstasy from the defendant. Id. The Cl told the detective the defendant would arrive at an agreed location on a specific date in a vehicle, and with a companion described, after picking up the drugs from a location in Miami. Id. On that date, the detectives conducted surveillance. Id. They observed the defendant entering a vehicle with a female companion fitting the description and driving with her to a residential neighborhood in Dade County. Id. The Cl made a three-way call to the defendant confirming he had the drugs. Id. The defendant told the Cl everything was fine and he was on his way back. Upon the defendant’s return, the detectives stopped the SUV. Id.

The defendant argued that his due process rights were violated by law enforcement’s failure to verify the defendant’s prior drug involvement before sending the untrained Cl into the community without proper monitoring and prior to the Cl entering into the substantial assistance agreement. Id. at 1029. The court recognized that, unlike in Nadeau v. State, 683 So.2d 504 (Fla. 4th DCA 1995), “the defendant was not harassed or threatened. Although the defendant testified he felt the Cl was ‘pushing’ him, he admitted the motivating factor was his financial situation .... The defendant had prior felonies, and the Cl had been instructed to approach only persons he had previously had drug business with or who were known to deal in drugs. Under these facts, there was no due process violation.” Id.

In summary, the transaction in this case was a repeat of deals that had occurred numerous times previously, the defendant was willingly involved, there was no significant change from prior behavior, the Cl was not acting under a substantial assistance agreement, but was simply hoping to benefit on his charges if he helped the deputy make a bust. There was no involvement by the deputy in setting up any aspect of the transaction other than to arrange for identifying and stopping the car; the Cl was acting on his own, he was not acting as an agent except in following the defendant’s car after notifying the deputy. Although it might be argued that due to the informant’s alleged willingness to front part of the deal, the defendant bought twice as much cocaine as he otherwise would have, this factor would remain for the jury to consider in weighing an asserted defense of subjective entrapment and in determining the degree of the offense.

As to all other issues, we also find no reversible error or abuse of discretion.

Therefore, the judgment is affirmed.

MAY, J., concurs.

FARMER, J., concurs in result only.

      . Section 777.201(1), Florida Statutes, provides:
      (1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

      . State v. Glosson, 462 So.2d 1082 (Fla.1985); State v. Williams, 623 So.2d 462 (Fla.1993).


author: WOLF, J.

text:
    Edward VALE, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Alex Sink, Department of Financial Services, Respondent.
    No. 1D06-4646.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    Rehearing Denied June 26, 2007.
    Edward Vale, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joe Belitzky, Senior Assistant Attorney General, Tallahassee, for Respondent.
   WOLF, J.

Petitioner, Edward Vale, challenges an order of the circuit court denying his challenge to the Department of Corrections’ decision to not refund copying costs for his legal papers. Petitioner asserts that our decision in Smith v. Florida Department of Corrections, 920 So.2d 638 (Fla. 1st DCA 2005), should be applied retroactively. We decline to do so and deny his request for relief.

On March 6, 2006, petitioner filed an informal grievance with the warden at the Department of Corrections (Department). The grievance requested that “all money deducted from my inmate account be refunded or credited to my account.” This request was premised on the fact that he had paid to make copies of his legal paperwork, even though that provision in the administrative code was stricken. On March 7, 2006, petitioner’s grievance was denied and explained that, although the rule was stricken, previously collected money would not be refunded.

On March 24, 2006, petitioner appealed the decision to the superintendent. A response on April 20, 2006, denied petitioner’s grievance stating that no refunds are given on liens collected up to the date of the holding in Smith.

In Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1988), this court found that the State Board of Optometry (Board) exceeded reasonable construction of the enabling statute in promulgating a rule which created an application form drafted by the Board to be used to certify optometrists to administer ocular drugs. Id. at 879. Because the Board exceeded the reasonable construction of the enabling the statute, the challenged administrative rule was found invalid. Id. In discussing the retro-activity of the invalidity, this court provided:

It is apparent that the statutory scheme in chapter 120 for invalidating agency rules contemplates that once a rule, or an agency statement or form that constitutes a rule under the definition in section 120.52(16), Florida Statutes (1987), has been issued and acted or relied upon by the agency or members of the public in conducting the business of the agency, the rule will be treated as presumptively valid, or merely voidable, and must be given legal effect until invalidated in a section 120.56 rule challenge proceeding. The rule may be invalidated before becoming effective only by filing a rule challenge proceeding under section 120.54(4), Florida Statutes (1987), or initiating a drawout proceeding authorized in section 120.54(17), Florida Statutes (1987). The statutory scheme is obviously intended to avoid the chaotic uncertainty that would necessarily flow from retroactively invalidating agency action taken in reliance on the presumed validity of its rule prior to a proper rule challenge proceeding holding the rule invalid.

Id. at 889 (emphasis added). Applying this reasoning to the situation in Board of Optometry, this court held that rule 21Q-10.001, which was held invalid by the hearing officer and this court’s opinion, was void and ineffective as of the date the decision of this court became final. Id.; see also Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco v. Martin County Liquors, Inc., 574 So.2d 170 (Fla. 1st DCA 1991) (holding that, because the application form, DBR 700L, and policy section 302 were not properly promulgated as rules, they will become void and ineffective as of the date the court’s decision became final).

We, therefore, deny the petition.

ALLEN and POLSTON, JJ., concur.


text:
    Johnnie F. JETER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0707.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    Rehearing Denied June 25, 2007.
    Johnnie F. Jeter, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. See Fla. R.App. P. 9.110(b).

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


author: GRIFFIN, J.

text:
    K.E., Mother of S.C., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 5D06-3294.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2007.
    H. Kyle Fletcher, Jr., of Fletcher Law Firm, Oviedo, for Appellant.

      Charles D. Peters, Orlando, for Appel-lee, Department of Children and Families.
    Hillary Kambour, of Guardian ad Litem Program, Orlando, for Appellee, Guardian Ad Litem Program.
    Deborah M. O’Brien, of Deborah M. O’Brien, P.A., of Lowis & Gellen, LLP, Altamonte Springs, for Appellee, Y.C., Father of S.C.
   GRIFFIN, J.

K.E. [“Mother”] appeals the trial court’s order placing her daughter, S.C., in the sole custody of the child’s father, V.C. [“Father”], and terminating jurisdiction over the dependency case. Because we find that the procedure followed was defective, we reverse.

Mother has a history of drug use. On the night of September 8, 2005, Mother left S.C. and her two-year-old niece unattended overnight while she was out using drugs and alcohol. S.C. was taken into protective custody. The Florida Department of Children and Families [“DCF”] filed a petition to adjudicate S.C. dépen-dent. On November 22, 2005, Mother consented to the petition. S.C. was initially placed with friends, and thereafter was moved several times into different placements.

DCF’s proposed case plan for Mother recited that it was needed because “[t]he child was exposed to illegal substances and there was inadequate supervision causing threatened harm to the child.” The goal of the plan was “reunification,” and the date fixed to reach the goal was September 12, 2006. On January 30, 2006, the trial court adjudicated S.C. dependent as to Mother and accepted the proposed case plan.

Meanwhile, on December 12, 2005, Father, who was living in Puerto Rico, entered a denial to the Petition for Dependency. On February 9, 2006, a dependency hearing was held with respect to Father, at the conclusion of which the trial court found that DCF had failed to prove its case against Father and dismissed the petition for dependency as to him. Shortly thereafter, the trial court granted Father temporary legal custody and allowed Father to take S.C. with him to Puerto Rico to live with him and his parents.

On April 10, 2006, the trial court heard arguments on Father’s motion for sole custody and to terminate jurisdiction. Mother objected to the motion, asserting that she was in the process of substantially complying with her case plan and that adequate time had not passed for her to complete the case plan. Further, Mother argued that S.C. did not want to go to Puerto Rico and that her adjustment to living there would be difficult because she did not speak Spanish. Father replied that he was entitled to custody unless it would be detrimental to the health and well-being of the child. He also argued that it would not be detrimental to allow her to move to Puerto Rico because he would enroll S.C. in a bilingual school there, S.C. would be taught Spanish, and he has a lot of family support in the area. DCF supported Father’s motion, noting that Mother had just recently begun completing her case plan and that she was not in substantial compliance at that time.

The trial court granted Father’s motion. No finding was made relating to whether Mother was in substantial compliance with her case plan or whether Mother posed a threat to the welfare of the child.

On appeal, Mother principally contends that it was error to permanently place the child with the Father and terminate jurisdiction while she was in the process of complying with her case plan and the time for performance had not expired. Although we conclude, based on our analysis of Chapter 39, Florida Statutes, and our prior case law, that the correct procedure was not followed below, Mother is not correct that the trial court lacks the power to terminate jurisdiction prior to expiration of the original date for completion of her case plan.

It is apparent that the trial court was attempting to follow the dictates of chapter 39; however, the operation of its various provisions in a case where there is a non-offending parent is quite unclear.

Section 39.521(3)(b), Florida Statutes (2006), provides:

Section 39.521, Disposition hearings; powers of disposition.—
(3) When any child is adjudicated by a court to be dependent, the court shall determine the appropriate placement for the child as follows:
(b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child.... If the court places the child with such parent, it may do either of the following:
1. Order that the parent assume sole custodial responsibilities for the child. The court may also provide for reasonable visitation by the noncustodial parent. The court may then terminate its jurisdiction over the child.
2. Order that the parent assume custody subject to the jurisdiction of the circuit court hearing dependency matters. The court may order that reunification services be provided to the parent from whom the child has been removed, that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court jurisdiction, or that services be provided to both parents, in which case the court shall determine at every review hearing which parent, if either, shall have custody of the child. The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.

(Emphasis added). Thus, according to section 39.521(3)(b), once the trial court decides to place the dependent child with a non-offending parent, it may do one of two things: it may order the non-offending parent to assume sole custodial responsibility and terminate its jurisdiction over the child, or the court may place the child with the non-offending parent, provide services to one or both parents, and retain jurisdiction to determine the better placement for the child as the dependency progresses. Unclear is whether the court can proceed under subsection (3)(b)2. and then revert to (3)(b)l.

A trial court’s decision to proceed under subsection 2. appears to have several consequences. This court has said that once reunification services are provided to the offending parent pursuant to a case plan, the trial court may not simply discard the case plan prior its expiration. D.S. v. Dep’t of Children & Families, 900 So.2d 628, 631-32 (Fla. 5th DCA 2005) (“We find error in this case that the case plan for T.A. and D.B. was closed prior to the expiration of the 12 month period during which the mother had to comply with the terms of the case plan.”). Also, an offending parent who has substantially complied with a case plan that has the goal of reunification is entitled to reunification with the dependent child, absent a determination that reunification would be detrimental to the child. D.G. v. Dep’t of Children & Families, 903 So.2d 1042 (Fla. 5th DCA 2005); R.H. v. Dep’t of Children & Families, 948 So.2d 898, 900 (Fla. 5th DCA 2007) (“The mother would be entitled to reunification with the children if she substantially complied with her case plan and if reunification would not be detrimental to the children.”); §§ 39.522(2) and 39.701(9)(b), Fla. Stat. (2006).

In a situation where the offending parent has not yet substantially complied with the case plan and the time for such compliance has not yet expired, if any party or the court concludes that reunification with the offending parent would no longer be appropriate, the proper procedure to follow is to amend the case plan. See R.H., 948 So.2d at 900 (“Alternatively, the court may consider a motion to amend the case plan so as to change the case plan goal from reunification of the children with the mother, to placement of one or both of the children with their respective fathers.”).

The relationship between sections 39.522(2) and 39.521(3)(b), Florida Statutes, was recently clarified by this court in R.H. There, two children were adjudicated dependent as to their mother and placed in the temporary custody of their respective, non-offending fathers on November 16, 2005. The mother entered into a case plan with the goal of reunification and a goal achievement date of August 2, 2006. The mother filed a motion for reunification, which was heard on March 6, 2006. After receiving evidence that the mother was not in substantial compliance with her plan, the trial court denied the motion. The two fathers then made ore tenus motions to close the case. The trial court granted the motions and awarded permanent custody of the two minor children to their respective fathers.

On appeal, this Court found a due process error based on the trial court’s decision to close the case without prior notice that permanency would be decided at the hearing. R.H., 948 So.2d at 899. Further, this Court found that:

The trial court’s order was also erroneous because it had the effect of modifying the case plan. Florida Rule of Juvenile Procedure 8.400(b)(2) provides that if any party objects to the amendment of the case plan, the court must conduct an evidentiary hearing. In the present case, the mother was never given the opportunity for an evidentiary hearing, although she clearly objected to this de facto amendment to the case plan.

Id. at 899-900. Then, in light of the finding that the mother was not in substantial compliance with her case plan, this court said:

On remand, the trial court may choose to give the mother additional time to complete her case plan. The mother would be entitled to reunification with the children if she substantially complied with her case plan and if reunification would not be detrimental to the children. D.G.
Alternatively, the court may consider a motion to amend the case plan so as to change the case plan goal from reunification of the children with the mother, to placement of one or both of the children with their respective fathers. § 39.6013, Fla. Stat. (2005). A case plan is not required to have a goal of reunifying a child with the parent from whom the child was removed. ...
No case plan amendment shall take place absent proper notice and the opportunity for an evidentiary hearing should a party object to the proposed amendment. Fla. R. Juv. P. 8.400(b).

Id. at 900 (emphasis added); see also § 39.6013(2), Fla. Stat. (2006).

Section 39.6013, Florida Statutes (2006), and Florida Rule of Juvenile Procedure 8.400(b) govern the process of case plan amendment. See § 39.6013(1), Fla. Stat. (2006) (“After the case plan has been developed under s. 39.6011, the tasks and services agreed upon in the plan may not be changed or altered in any way except as provided in this section.”). In pertinent part, sections 39.6013(2), (4)(b) and (4)(c), Florida Statutes (2006), provide:

(2) The case plan may be amended at any time in order to change the goal of the plan....
(4) The case plan may be amended by the court or upon motion of any party at any hearing to change the goal of the plan ... if there is a preponderance of evidence demonstrating the need for the amendment. The need to amend the case plan may be based on information discovered or circumstances arising after the approval of the case plan for:
(b) The child’s need for permanency, taking into consideration the child’s age and developmental needs;
(c) The failure of a party to substantially comply with a task in the original case plan, including the ineffectiveness of a previously offered service....

(Emphasis added). Further, in relevant part, rule 8.400(b), Florida Rule of Juvenile Procedure, provides:

(1) The case plan may be amended by:
(A) the parties at any time provided agreement is unanimous, and the amendment is approved by the court; (B) the court on motion of a party after notice to all other parties; or (C) the court.
(2) If any party objects to the amendment of the case plan, the court must conduct a hearing allowing each party to present evidence and information as permitted in rule 8.340(a).
(3) Any amendment granted by the court must be based on competent evidence.

(Emphasis added). If a party objects to a proposed amendment to the case plan rejecting the goal of reunification, an eviden-tiary hearing must be held to determine whether the need for the amendment is established by the preponderance of evidence. See § 39.6013(1), Fla. Stat. (2006); R.H., 948 So.2d at 899-900. We accordingly reverse the order of permanent placement and termination of jurisdiction and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

      . The record indicates that S.C. had previously been removed from Mother’s care in 2001 as a result of domestic violence and substance abuse issues and that reunification had occurred in 2003.

      . The petition alleged that Father's address was unknown and that he had abandoned her, failed to support her, failed to communicate with her, and failed to fulfill his parental responsibilities.

      . The consent she entered into included the following language:
      13. That should the Court find that I have substantially complied with the Case Plan, the Child/Children shall be returned to my custody at or before such Review Hearings if the Court is satisfied that reunification will not be detrimental to the Child’s/Children's safety or well-being.
      14. That if the Child/Children has/have been out of my home for a minimum of twelve months, and I have not complied with the Case Plan, DCF may initiate termination of parental rights proceedings or move for long-term placement of the Child/Children with a relative.

      (emphasis added).

      .A favorable home study on the paternal grandparents’ home had been completed in Puerto Rico.

      . This Court followed D.S. in D.G. where “the lower court changed custody of the minor child to the child’s father pursuant to section 39.521(3)(b), Florida Statutes (2005).” D.G., 903 So.2d at 1042. At the time of the order, the mother had substantially complied with her case plan, which had the goal of reunification. This court held that, under these circumstances, "the court’s change in custody was erroneous in the absence of a determination that reunification would be detrimental to the child.” Id.


author: PLEUS, C.J.

text:
    Robert J. MASTERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3508.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, C.J.

Masters appeals his civil commitment under the Jimmy Ryce Act. He argues that the trial court erred in admitting hearsay evidence against him because that evidence was not reliable. He also argues that section 394.9155(5), Florida Statutes (2006), which authorizes the admission of hearsay in Jimmy Ryce proceedings, violates Article V, section 2(a) of the Florida Constitution, which gives the supreme court the power to regulate practice and procedure. We affirm.

Facts

In December 2002, the State filed an Amended Petition for Declaration and Commitment of Respondent as a Violent Sexual Predator. The petition alleged that Masters had been convicted previously of attempted sexual battery on a child under twelve and that Masters suffered from a mental disorder making it likely that he would engage in acts of sexual violence if not confined to a secure facility.

Before trial, Masters filed a motion in limine to limit the introduction of any documentary evidence containing hearsay under section 394.9155, Florida Statutes (2006), because admission of such hearsay (1) would be contrary to this Court’s holding in Jenkins v. State, 803 So.2d 783 (Fla. 5th DCA 2001); (2) would be contrary to the holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and (3) section 394.9155 violated the separation of powers principle and more specifically, Article V, Section 2 of the Florida Constitution. When Masters raised this motion at the beginning of trial, the judge stated she would rule on any objections at the time such evidence was offered.

During trial, two experts testified for the State and one expert testified for Masters. All three experts were asked about three disciplinary reports Masters received while he was in prison. During the testimony of the State’s first expert, psychologist Ted Shaw, Masters objected to inquiry about the disciplinary reports. The State voir dired Dr. Shaw, who testified that the disciplinary reports were the type of information he relied upon in performing Jimmy Ryce assessments and that the disciplinary reports were relevant to determining whether Masters was likely to reoffend. The trial court overruled Masters’ objections.

Dr. Shaw testified that two of the disciplinary reports were for incidents in which Masters was caught masturbating while looking at underaged females in the prison’s visiting park. The third disciplinary report involved an incident in which Masters was caught masturbating while watching a female corrections officer. Masters admitted to Dr. Shaw the incidents involving underage females in the visiting park. He stated that he was aroused by the little girls in the visiting park and could not keep from masturbating even though he knew he was at great risk of being caught. Masters also admitted being sexually attracted “to officers and masturbating in the officer’s view.”

In anticipation of a defense objection based on double hearsay, Dr. Shaw spoke directly to the corrections officer who wrote up Masters for masturbating in her presence. She told Dr. Shaw that Masters had exposed himself to her many times, but on that occasion, she wrote him up because she was convinced he was purposefully masturbating in her presence.

During the testimony of the State’s second expert, psychologist Eric Jensen, the State asked about Masters’ disciplinary reports in prison. Dr. Jensen testified these records were the type of information customarily relied upon by experts in the field to perform a civil commitment assessment. Without a hearsay objection, Dr. Jensen testified that the two disciplinary reports involving masturbating while watching un-deraged females in the visiting park were particularly relevant. Masters told Dr. Jensen that one girl was about eleven or twelve years old and reminded him of the eight-year-old victim he had molested in his criminal case.

The defense presented its expert, psychologist Joseph Sesta. On cross-examination, Dr. Sesta acknowledged, without objection, that Masters had admitted the conduct reported in the disciplinary reports.

In her commitment order, the trial judge stated in pertinent part:

While incarcerated, he received several disciplinary reports, three of which are relevant and involve masturbating in view of a female correctional officer and masturbating while looking at under age girls in the visiting park. The Respondent admitted to engaging in this behavior, as well as the underlying offense, will [sic] all three doctors.

Preservation of Error

Masters first argues that the trial court erred in admitting the disciplinary reports against him because there was no showing that they fit into one of the firmly rooted exceptions to the hearsay rule. Although Masters filed a motion in limine before trial, the trial court declined to rule on the admission of any. evidence until the State attempted to introduce it. Masters initially objected to Dr. Shaw’s testimony regarding the disciplinary reports, but when the State voir dired Dr. Shaw to establish his reliance on the reports in performing his evaluation under section 90.704, Masters failed to contest this exception to the hearsay rule. In addition, Masters failed to object to Dr. Jensen’s or Dr. Sesta’s testimony regarding the disciplinary reports. As the court relied upon all three doctors’ testimony about the disciplinary reports, Masters should have objected to each doctor’s testimony, not just one. Accordingly, Masters failed to preserve his argument that the court erred in allowing inadmissible hearsay evidence against him.

Section 90.704, Florida Statutes

Even if Masters had preserved this argument, he ignores the fact that the State sought to admit testimony regarding the disciplinary reports under section 90.704, Florida Statutes. That section provides an exception to the hearsay rule which allows expert witnesses to testify about “facts or data upon which an expert bases an opinion” so long as those “facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed .... ”

Below, the State sought admission of these reports under this exception by attempting to establish the necessary predicate with its experts. Dr. Shaw testified that the disciplinary reports were the type of information he relied upon in performing Jimmy Ryce assessments and that the disciplinary reports were relevant to determining whether Masters was likely to reof-fend. Even though this testimony was not specific enough to meet the predicate required under section 90.704, Masters failed to further challenge the admission of the disciplinary reports after Dr. Shaw had been voir dired to this extent.

Furthermore, Dr. Jensen established the required predicate by testifying that these records were the type of information customarily relied upon by experts in the field to perform a civil commitment assessment. Dr. Jensen testified without any objection at all.

Jenkins

Masters also challenges the admission of testimony regarding the disciplinary reports as violating this Court’s ruling in Jenkins. In that case, this Court reversed a Jimmy Ryce commitment order because (1) it was based almost exclusively on hearsay evidence, namely police reports from cases in which Jenkins was not convicted after a plea or trial; and (2) that evidence was not just hearsay, but was double and triple hearsay with no indicia of reliability. 803 So.2d at 787.

For the reasons discussed above, this argument was not preserved for appeal. Even if it had been preserved, it lacks merit because the instant case is distinguishable from Jenkins in several key respects. First, the experts testified that Masters admitted the conduct in two of the three disciplinary reports, specifically the ones involving masturbating while looking at underaged females. As Dr. Jensen stated, these two reports were more relevant to his evaluation than any of the other disciplinary reports. Second, Masters’ civil commitment was not based solely on hearsay. There was ample non-hearsay evidence demonstrating that Masters had a problem and was likely to reoffend. Thus, Jenkins does not control. See also In re Commitment of Williams, 841 So.2d 531 (Fla. 2d DCA 2003) (distinguishing Jenkins on similar grounds).

Constitutionality of Section 394.9155(5), Florida Statutes (2006)

Finally, Masters argues that section 394.9155(5), Florida Statutes (2006) is unconstitutional because it purports to regulate, in a Jimmy Ryce proceeding, the procedure for admitting evidence, which is the exclusive responsibility of the supreme court under Article V, Section 2(a) of the Florida Constitution. This issue was preserved below. The standard of review is de novo. Lowe v. Broward County, 766 So.2d 1199 (Fla. 4th DCA 2000).

Section 394.9155(5), Florida Statutes, states:

(5) Hearsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.

Article V, Section 2(a) of the Florida Constitution states, in pertinent part, that the “supreme court shall adopt rules for the practice and procedure in all courts.... ”

Masters’ constitutional challenge was expressly rejected in In re Commitment of Cartwright, 870 So.2d 152 (Fla. 2d DCA 2004). In Cartwright, the second district held that section 394.9155(5) does not infringe upon the supreme court’s rulemak-ing authority in procedural matters, as granted by Article V, Section 2 of the Florida Constitution, because (1) section 394.9155 is a procedural provision that is “intimately related to” or “intertwined with” substantive statutory provisions of the Jimmy Ryce Act; (2) in Florida Rule of Civil Procedure 1.010, the supreme court delegated to the legislature the authority to determine procedure in all special statutory proceedings, such as civil commitment proceedings under the Jimmy Ryce Act; and (3) case law supports the conclusion that the provision is constitutional. Cartwright, 870 So.2d at 157.

Masters attacks Cartwright generally on the ground that section 394.9155(5) denies him the right of confrontation. The court in Cartwright rejected that argument, stating:

The Confrontation Clauses of both the United States and Florida Constitutions are expressly limited to “criminal prosecutions.” Conner [] is thus wholly in-apposite to a civil commitment proceeding such as the one at issue here. But see Jenkins v. State, 803 So.2d 783, 785 (Fla. 5th DCA 2001) (“Obviously [section 394.9155(5) ] must be construed in light of the Fourteenth Amendment right of confrontation.”).

Id. at 156. Subsequent cases have also held that the constitutional right of confrontation does not bar the admission of hearsay evidence in civil commitment proceedings. Marshall v. State, 915 So.2d 264, 267 (Fla. 4th DCA 2005); In re Commitment of Burton, 884 So.2d 1112, 1114 (Fla. 2d DCA 2004). All of these cases note the contrary language in Jenkins that “[ojbviously [section 894.9155(5) ] must be construed in light of the Fourteenth Amendment right of confrontation.” Jenkins, 803 So.2d at 785.

We are not bound by this language in Jenkins because it is dictum. The constitutionality of section 394.9155 was not raised in Jenkins. Subsequent cases in which this argument was raised have expressly rejected it. Jenkins is also distinguishable on the grounds previously discussed.

Accordingly, we affirm.

AFFIRMED.

ORFINGER and EVANDER, JJ., concur.

      . §§ 394.910-.930, Fla. Stat. (2002).

      . Conner v. State, 748 So.2d 950, 960 (Fla.1999).


author: STRINGER, Judge.

text:
    Roxann PETERSON, Appellant, v. THERMA BUILDERS, INC., d/b/a Tom Craig Remodeling, Appellee.
    No. 2D05-6018.
    District Court of Appeal of Florida, Second District.
    May 18, 2007.

      Roxann Peterson, pro se.
    A. Christopher Fasten, II, of Bush Ross, PA, Tampa, for Appellee.
   STRINGER, Judge.

Roxann Peterson appeals from the final summary judgment which found her liable to Therma Builders, Inc., for civil theft, fraud, conspiracy to commit fraud, conversion, conspiracy to commit conversion, and unjust enrichment and which awarded Therma Builders $124,382.50 in damages. The final summary judgment was predicated on Peterson’s criminal conviction for scheming to defraud and the restitution order that was imposed as part of her sentence for that conviction. We affirm the final summary judgment against Peterson to the extent that it found her liable for damages, but we reverse the amount of damages awarded and remand for further proceedings.

In March 2002, Peterson was criminally charged with one count of scheming to defraud and obtaining property in an amount of $50,000 or more pursuant to section 817.034(4)(a)(l), Florida Statutes (2002). This criminal charge arose out of various irregular financial dealings that occurred while Peterson was employed as Therma Builders’ office manager and bookkeeper. In June 2004, Peterson pleaded no contest to the criminal charge. Ultimately, she was sentenced to a period of incarceration followed by community control and probation. In addition, after a lengthy evidentiary hearing, the trial court ordered Peterson to pay restitution to Therma Builders in the amount of $179,990.49 as a condition of her community control and probation.

While the criminal charge was pending but before its resolution, Therma Builders filed a civil action against Peterson arising out of the same events that formed the basis of the criminal charge. The complaint sought damages for civil theft, fraud, conspiracy to commit fraud, conversion, conspiracy to commit conversion, constructive trust, unjust enrichment, fraudulent transfer, conspiracy to effect a fraudulent transfer, and equitable lien. After Peterson pleaded no contest to the criminal charge and after the restitution order was entered, Therma Builders moved for summary judgment in the civil action, contending that Peterson was es-topped from denying her liability to Ther-ma Builders in the civil action by operation of section 775.089(8), Florida Statutes (2003).

On November 1, 2005, the trial court granted final summary judgment in favor of Therma Builders in the civil action. No transcript of the hearing on Therma Builders’ motion for summary judgment is in the record. However, from the face of the final summary judgment, it is clear that the trial court made no independent findings as to the amount of damages to which Therma Builders was entitled in the civil action. Instead, it appears that the trial court simply noted the amount of restitution ordered by the criminal court, reduced that amount by payments Therma Builders had already received from Peterson, and entered judgment in favor of Therma Builders for the balance. Peterson now appeals this final summary judgment, challenging both the finding of liability and the amount of damages awarded.

The trial court’s finding that Peterson was liable to Therma Builders in the civil action was predicated on section 775.089(8), which reads as follows:

The conviction of a defendant for an offense involving the act giving rise to restitution under this section shall estop the defendant from denying the essential allegations of that offense in any subsequent civil proceeding. An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.

The plain intent of this statute is to assist crime victims by eliminating the common law requirement of identity of parties that would otherwise prevent collateral estoppel from being used in a civil action based on a prior criminal conviction. Starr Tyme, Inc. v. Cohen, 659 So.2d 1064, 1067 (Fla.1995); Stafford v. Don Reid Ford, Inc., 920 So.2d 791, 793 (Fla. 5th DCA 2006). Under section 775.089(8), a defendant who is convicted in a criminal proceeding for the conduct that forms the basis of a civil claim is estopped from challenging in the civil action those matters that were actually and necessarily adjudicated in the criminal proceeding. Starr Tyme, 659 So.2d at 1068-69; Stafford, 920 So.2d at 793; J & P Transp., Inc. v. Fid. & Cas. Co. of N.Y., 750 So.2d 752, 753 (Fla. 5th DCA 2000); Paterno v. Fernandez, 569 So.2d 1349, 1350 (Fla. 3d DCA 1990).

In the criminal action at issue here, Peterson was charged with scheming to defraud under section 817.034(4)(a)(l). That statute defines a “scheme to defraud” as “a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.” § 817.034(3)(d). The section under which Peterson was convicted applies to any person who engages in a scheme to defraud and who actually obtains property as a result of the scheme in an aggregate amount of $50,000 or more. § 817.034(4)(a)(l).

In this subsequent civil action, the parties do not dispute that Peterson was convicted of scheming to defraud. In addition, the parties do not dispute that restitution was ordered as part of Peterson’s sentence. Thus, by operation of section 775.089(8), Peterson was estopped in this civil action from denying that she engaged in a course of conduct with the intent to defraud Therma Builders or with the intent to obtain property from Therma Builders by the use of false or fraudulent pretenses and that she actually obtained property with a value in excess of $50,000. Because Peterson is es-topped from disputing these facts and because these facts support the trial court’s finding that Peterson was liable to Therma Builders for damages, we affirm the final summary judgment in favor of Therma Builders on the issue of liability. See J & P Transp., 750 So.2d at 753 (noting that the issue of liability in a civil theft action is properly decided by summary judgment when section 775.089(8) forms the basis of the motion for summary judgment).

However, we must reverse the final summary judgment to the extent that it awards damages for two reasons. First, it does not appear that the trial court properly set off the amount of the restitution award against the civil judgment. While a crime victim is entitled to pursue both a criminal restitution award and a civil damages award, section 775.089(8) specifically requires that the amount of the restitution award be set off against the civil judgment so that the victim does not receive a double recovery. See Kirby v. State, 863 So.2d 238, 243 (Fla.2003). In addition, because the damages recoverable in a civil action may differ from those recoverable through restitution, the trial court must also ensure that it sets off against the civil judgment only those elements of damages already awarded in the criminal restitution order. Id.; of. Weinstein v. State, 745 So.2d 1085 (Fla. 4th DCA 1999) (remanding for an evidentiary hearing on whether a civil settlement entered prior to entry of a restitution order encompassed all of the damages suffered by the victim and thus should be set off in its entirety against the restitution order).

Here, the final summary judgment contains no findings as to the amount of damages for which Peterson is civilly liable to Therma Builders. In addition, the final summary judgment contains no set off for the amount of the restitution ordered. Further, there is nothing in the record to establish that the damages awarded in the final summary judgment compensate Ther-ma Builders for damages not already awarded in the restitution order. Thus, from the face of the judgment, it appears that the trial court has improperly awarded in the final summary judgment the same damages that were previously awarded in the restitution order with no set off to prevent duplicate recovery.

Second, even if the final summary judgment does not award duplicate damages, we must reverse for recalculation of the damages award because we have reversed the restitution order in the criminal case and remanded for recalculation. Peterson v. State, 32 Fla. L. Weekly D371, — So.2d -, 2007 WL 283701 (Fla. 2d DCA Feb. 2, 2007). Assuming the trial court properly used the restitution order to determine the amount of the required set off under section 775.089(8), its calculations are no longer correct in light of this reversal. Accordingly, we reverse the damages awarded in the final summary judgment and remand for further proceedings after the restitution order in the criminal case has been reentered.

Affirmed in part; reversed in part; and remanded for further proceedings.

KELLY, J. and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . We note that the question of whether Peterson conspired to commit fraud or conversion was not a fact actually and necessarily adjudicated in the criminal proceeding, and we question whether Peterson's conviction for scheming to defraud, standing alone, is sufficient to support the entry of final summary judgment against Peterson on these counts. However, Peterson has not raised this issue on appeal, and we are therefore prevented from addressing it.


text:
    Jonathan Mark MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3777.
    District Court of Appeal of Florida, Second District.
    May 18, 2007.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Jonathan Miller appeals the revocation of his probation, which was based on the trial court’s findings that Miller had committed a new offense by tampering with a witness and had disobeyed instructions from his probation officer. Because the trial court’s findings are not supported by the evidence presented at the revocation hearing, we reverse and remand for the trial court to reinstate Miller to probation.

Facts

In 1999, Miller was sentenced in case number 98-22426 to fifteen years in prison, suspended after five years with the balance to be served on probation. In case number 99-607, Miller was sentenced to five years in prison, suspended in favor of probation to be served consecutively to the probation in case number 98-22426. Miller was released from prison and began serving his probation in 2003. In 2005, the Department of Corrections filed an affidavit alleging that Miller had violated his probation by committing the offense of tampering with a witness and by failing to follow his probation officer’s instructions.

At the revocation hearing, Miller’s probation officer, James Steere, testified that on April 29, 2005, he received a message from a woman named Pamela Bocook who reported that Miller was repeatedly calling her at work and that she was going to lose her job if Miller did not stop calling. At the time of these calls, Miller was being investigated by the police for allegedly engaging in lewd and lascivious behavior with Bocook’s nine-year-old granddaughter, T.N.B. In response to Bocook’s complaint, Steere called Miller and told him not to contact Bocook anymore.

On May 4, Steere spoke with Charles Leonard, who lived with Bocook. Leonard told Steere that Miller was still repeatedly calling Bocook and leaving messages on her answering machine. After this discussion with Leonard, Steere again contacted Miller and instructed him to stop contacting Bocook in any manner and at any location.

The next day, Steere learned that Bo-cook had dropped off a letter that Miller had allegedly left at Bocook’s house. After reading this letter, Steere called Bo-cook, who told Steere that Miller had been to the Beall’s store where she worked earlier that day. Bocook told Steere that she had a layaway slip signed by Miller that he had completed while he was in the store on May 5. Steere then asked Bocook to come to the probation office the next day to provide a sworn statement. However, before Bocook could do so, Steere discussed Miller’s case with his supervisor, and they decided to arrest Miller. According to Steere, Miller repeatedly called Bocook from the jail after his arrest until Bocook arranged to have his calls blocked on May 11.

Steere testified that as he was investigating the calls Miller made to Bocook, he learned that Miller was “attempting through various means to get the grandmother to talk to the granddaughter and get her to change her story to the investigators about what he did to her.” Steere testified that, in addition to his conversations with Bocook, he spoke with T.N.B.’s mother and stepfather, both of whom told him that Miller was asking them to talk to T.N.B. and “get her to change her story about [Miller] molesting her.” Steere also testified that Miller discussed the sexual molestation charges made by T.N.B. in the letter he left for Bocook and that he encouraged Bocook to “talk to her granddaughter” about the charge. However, the State did not call either T.N.B.’s mother or stepfather to testify at the revocation hearing, and the State did not introduce into evidence the letter Steere had gotten from Bocook.

In addition to Steere, the State called Detective Jessie Warren to testify at the revocation hearing. Warren was the detective who had investigated the molestation charges T.N.B. had made against Miller. During Warren’s testimony, the State asked whether it had come to Warren’s attention that Miller was tampering with possible witnesses in the case. Warren responded that Miller had “admitted to me that he had been contacting the grandmother, had talked to her on the phone.” However, Warren did not testify to the substance of any discussions between Miller and Bocook and did not testify that Miller had admitted to tampering with any witnesses.

The State also called Bocook to testify. Bocook testified that Miller had called her repeatedly at work and that her manager and supervisors were “fed up” with his calls. She testified that each time Miller called, he asked her to talk to T.N.B. and find out what T.N.B. was going to say to the police. After three or four days of repeated telephone calls, Bocook called Steere to complain. Bocook testified that when Miller continued to call her, she simply stopped answering the telephone until she arranged to have his calls blocked. Bocook also testified that Miller had dropped off and mailed numerous letters at her residence, but she denied reading them. Instead, she took them, unopened, to Miller’s probation officer.

Based on this evidence, the trial court found that Miller had violated condition five of his probation by committing the offense of tampering with a witness and condition nine of his probation by disobeying the instructions of his probation officer. The trial court then revoked Miller’s probation and sentenced him to fifteen years in prison with credit for time served in case number 98-22426. In case number 99-607, the trial court sentenced Miller to a consecutive five-year prison term.

Condition Five

The trial court first found that Miller violated condition five of his probation by committing the new criminal offense of tampering with a witness. On appeal, Miller argues that there was no competent nonhearsay evidence to establish that he tampered with a witness. We agree.

Section 914.22(l)(f), Florida Statutes (2005), defines tampering with a witness as using intimidation or threats against another person with the intent to cause or induce the other person to “[tjestify untruthfully in an official investigation or an official proceeding,” or attempting to do so. Section 914.22(l)(e) prohibits the same conduct when done with the intent to “[h]inder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense.... ” Based on these statutory definitions, in order to establish that a defendant was tampering with a witness, the State must prove not only that the defendant had contact with the witness, but also that the nature of the contact was such that it would either cause or induce the witness to testify untruthfully or not to testify at all. It is the nature of the contact between the defendant and the victim that distinguishes the crime of tampering with a witness from the crime of stalking under section 784.048, Florida Statutes (2005).

Here, neither T.N.B.’s mother or stepfather testified to the content of their conversations with Miller. In addition, while Bocook testified that Miller asked her to talk to her granddaughter and find out what she was going to say to the police, Bocook did not testify that Miller made any attempt during these conversations to convince her to get her granddaughter to testify untruthfully or made any attempt to prevent her granddaughter from cooperating with the on-going investigation. Thus, Bocook’s testimony provided no evidence that would support a finding that Miller had tampered, or attempted to tamper, with a witness as those terms are defined by statute.

It is true that Steere testified that Miller attempted to convince Bocook to “talk to her granddaughter and get her to change her story to the investigators about what he did to her.” However, Steere’s testimony on this issue was hearsay. Although hearsay evidence is generally admissible at a revocation hearing, a revocation of probation may not be based solely on hearsay evidence. Dean v. State, 948 So.2d 1042, 1044 (Fla. 2d DCA 2007); Bales v. State, 793 So.2d 87 (Fla. 2d DCA 2001).

For example, in Bales, the State filed an affidavit alleging that Bales had violated his community control by committing the offense of battery and by visiting a pub. 793 So.2d at 87. At the revocation hearing, the only evidence offered by the State was the testimony of the deputy who interviewed the victim at the hospital. That deputy testified as to what he was told by the victim about the incident that allegedly occurred at the pub. The State argued that the victim’s statements were admissible under the hearsay exception for excited utterances and thus were sufficient to support the revocation. The trial court agreed and revoked Bales’ community control. However, this court held that the excited utterance exception did not apply and that the victim’s inadmissible hearsay statements were insufficient, standing alone, to support the revocation of Bales’ community control. Therefore, this court reversed and remanded for reinstatement of Bales’ community control.

In this case, the only evidence presented to establish that Miller tampered with a witness was Steere’s testimony concerning what Bocook and T.N.B.’s mother and stepfather had told him during his investigation. Like the officer’s hearsay testimony in Bales, Steere’s hearsay testimony in this case, standing alone, was insufficient to support a finding that Miller had committed the offense of tampering with a witness, and no nonhearsay evidence was admitted to corroborate the hearsay statements. Accordingly, the evidence presented at the revocation hearing was legally insufficient to support a finding that Miller had committed a new offense, and the trial court erred in revoking Miller’s probation on this basis.

Condition Nine

Miller next contends that the trial court erred by revoking his probation based on the allegations that he disobeyed the instructions of his probation officer because those instructions amounted to new conditions of probation that had not been imposed by the court. We agree on this point as well.

There is no question that a probation officer may give a probationer routine supervisory directions that are necessary to carry out the conditions imposed by the trial court. Parissay v. State, 687 So.2d 30, 30 (Fla. 5th DCA 1997). Thus, for example, a probation officer may require a probationer to notify the probation officer when he loses his job because this direction simply effectuates the conditions already imposed by the court. Haynes v. State, 440 So.2d 661, 662 (Fla. 1st DCA 1983).

However, an instruction that essentially imposes a new condition of probation is not a routine supervisory direction and cannot support a finding that the probationer is in violation. Id. For example, in Haynes, the probation officer’s instruction forbidding Haynes from going to his wife’s house was determined to be a new condition of probation rather than an instruction necessary to carry out the conditions imposed by the court. Therefore, the court reversed the revocation of probation to the extent that it was premised on that alleged violation.

In this case, Miller’s probation officer instructed him to stop contacting Bocook by phone, in person, and by mail. This instruction was not a routine supervisory direction necessary to carry out conditions of probation previously imposed on Miller by the trial court. Instead, it was essentially a new condition of probation, like the instruction in Haynes, that had not been imposed by or approved by the court. Accordingly, the trial court erred in revoking Miller’s probation on this basis as well.

Because the evidence presented at the revocation hearing was legally insufficient to support a finding that Miller had violated the terms of his probation, the trial court erred in revoking his probation. Accordingly, we reverse the order of revocation and remand for reinstatement of Miller to probation.

Reversed and remanded for reinstatement to probation.

FULMER, C.J., and CASANUEVA, J., Concur.

      . We note that even though Miller was not yet serving his probation in case number 99-607, the trial court could nevertheless revoke that probation upon proper findings. Stafford v. State, 455 So.2d 385, 386-87 (Fla.1984); Hernandez v. State, 889 So.2d 913, 914 n. 2 (Fla. 2d DCA 2004).


text:
    Michael Melvin SCHRACK, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2699.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Rehearing Denied July 23, 2007.
    Michael Melvin Schrack, Daytona Beach, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Melvin Schrack appeals the summary denial of his motion for post-conviction relief and amended motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We remand for the trial court to rule on claims 10, 13 and 14. In all other respects, we affirm the denial of the motions.

On September 19, 2002, Schrack filed a timely rule 3.850 motion raising eight claims for relief. After the State’s response and Schrack’s reply, the trial court entered an order summarily denying relief on grounds 1, 2, 3 and 8, and granting an evidentiary hearing on grounds 4 through 7. On September 24, 2003, Schrack filed an amended motion for post-conviction relief adding grounds 9 through 14. Thereafter, the trial court entered an order summarily denying claims 1, 2, 3, 8, 9, 11 and 12, granting an evidentiary hearing on claims 4 through 7, 10 and 13, and reserving ruling on claim 14 (in which Schrack argued cumulative error). The evidentiary hearing was held in July 2004, and the trial court made its oral ruling on March 31, 2005.

In this appeal, Schrack argues in part that the trial court failed to rule on claims 10, 13 and 14 — either at the oral pronouncement or in the subsequent written order. The State does not dispute this, but contends that Schrack waived these claims because post-conviction counsel never objected to the trial court’s ruling as incomplete. We disagree with the State. A trial court order that does not address all of the claims for post-conviction relief will be remanded for entry of an order that does. See Barber v. State, 851 So.2d 911 (Fla. 3d DCA 2003); Currelly v. State, 801 So.2d 1000 (Fla. 2d DCA 2001); see also Gomez v. State, 948 So.2d 911 (Fla. 2d DCA 2007) (affirming summary denial of defendant’s rule 3.850 motion, but reversing with respect to supplemental motion— which the trial court apparently failed to rule on — and remanding for post-conviction court to consider such). We therefore remand so that the trial court may address claims 10, 13 and 14 of Schrack’s amended post-conviction motion.

We affirm all other issues raised on appeal without further discussion.

STONE, SHAHOOD and MAY, JJ„ concur.