author: CIKLIN, J.

text:
    Tillman Christopher MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1562.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

The defendant, Tillman Moore, appeals his convictions for first-degree murder and aggravated child abuse, both against his three-month-old son. Moore argues two points on appeal: first, that he could not be convicted of both first-degree murder and aggravated child abuse because the crimes merged; and second, that the trial court erred in admitting evidence of prior burn injuries to the infant victim. For the reasons explained below, we find both of these arguments lack merit and therefore affirm.

Facts

Moore was charged with first-degree murder and aggravated child abuse against his three-month-old son. The wounds that led to the victim’s death were alleged to have occurred on September 27, 2007, when the victim was in Moore’s sole care'.

Before Moore’s trial, the state filed a motion to admit Williams rule evidence of burn injuries the victim sustained before September 27, 2007. The trial court permitted the state to introduce evidence of the burns because they occurred during two incidents in which Moore alone was caring for the victim, though Moore claimed they were accidental burns.

Moore’s jury trial lasted two weeks. Lawanda Addison testified that the victim was her son with Moore. She attended school during the day while Moore watched the victim. One day when the victim was two months old, Addison came home during a break and found the victim with a red mark on his chest. Moore told Addison that he placed the victim in the kitchen sink to bathe him and left the room for a minute to get something in another room; when he returned, the water had been turned to hot. Addison testified that she treated the burn with Neos-porin and gauze and it began to blister by the evening.

Addison then testified that a couple weeks later, she came home from school and again found the victim with a burn injury, that time on two of his fingers. Moore explained to Addison that he was holding the victim while eating a bowl of hot noodles and the victim reached into the bowl and burned his fingers. Addison treated those burns with Neosporin as well.

Addison then testified that a few days before September 27, 2007, she and Moore engaged in a heated argument. Moore was angry that Addison was not spending enough time with him. When Addison told Moore that she was planning to move to another location, he responded by telling her that he would kill her and the victim if she left. Addison called the police and Moore was compelled to leave the house for the night.

On September 27, 2007, Addison went to school in the early morning. She received a phone call from Moore in the afternoon, during which she informed Moore that she was planning on braiding a relative’s hair that evening. Moore became upset and began yelling and screaming at Addison, so she hung up the phone.

Shortly afterward, Moore called Addison again, informing her that the victim was not breathing. Addison rushed home and found Moore pacing back and forth while the victim lay at the head of the bed. Addison, who had some nursing training, attempted to perform CPR on the victim. When she asked Moore where the paramedics were, he informed her that he had not called them.

Moore called 911 and attempted to administer CPR to the victim per the instructions he received over the phone. Eventually the paramedics arrived and took the victim to the hospital. The victim was pronounced brain dead.

Addison testified that at the hospital she asked Moore what happened multiple times and he repeatedly told her he did not know and conjectured that the victim suffered a heat stroke. At one point, a doctor informed Addison and Moore that the victim had a skull fracture and asked them to explain how it happened. Moore repeated his claim that it was a heat stroke. Addison testified that she asked Moore multiple times whether the victim fell at any point and Moore always said no.

Dr. Stuart Graham, a forensic pathologist who was a Palm Beach County medical examiner in 2007, testified that he performed the autopsy on the victim. Dr. Graham noted that he found multiple injuries on the victim, including scratches on his head and chest, bruises on his forehead and the back of his head, internal bleeding in his neck, and additional bruising on his lower back, right arm, and right leg. Dr. Graham also noted that the bruising he found on the victim’s head included bruising to the top of the victim’s head as well as separate bruising to both the right and left sides of the victim’s head. Dr. Graham concluded that the bruises to the victim’s head were caused by multiple impacts. He noted that the scar from the chest burn was two-and-one-half-inehes long and that the skin on one of the victim’s pinky fingers was starting to come off from the burn. Dr. Graham said he reviewed the investigative reports and recorded statements and concluded within a reasonable degree of certainty that the cause of death was blunt force injuries and the manner of death was homicide.

Dr. Phillip Colaizzo, the medical director of the child protection team for Palm Beach County, examined the victim at the hospital. He concluded that the victim’s injuries were the result of “abusive head trauma.” He also concluded that the severity of the skull fracture, cranial bleeding, and brain swelling indicated that “massive force” was used on the victim.

The defense presented the testimony of Dr. Joseph Scheller, a pediatrician and neurologist. He reviewed the victim’s medical records and autopsy photographs and testified he was suspicious that “maybe somebody pummeled the back of the head of this baby.” Dr. Scheller concluded that either someone was violent toward the victim or he fell and then bounced.

The jury found Moore guilty as charged and the trial court sentenced him to life in prison for first-degree murder and thirty years in prison for aggravated child abuse. Moore timely appeals his convictions.

First-Degree Murder, Aggravated Child Abuse, and Brooks

Moore argues that under Brooks v. State, 918 So.2d 181 (Fla.2005), the first-degree murder and aggravated child abuse charges against him merged. The portion of Brooks relevant to this appeal stands for the notion that child abuse which stems from a discrete, single act cannot also serve as the underlying felony for first-degree murder. Id. at 197-99. We have previously held that Brooks does not apply when the state presents evidence of multiple acts of abuse. See, e.g., Kennedy v. State, 59 So.3d 376, 383 (Fla. 4th DCA 2011) (“We ... conclude that the offenses did not merge, as there was evidence of more than a single act of abuse.”). We find that the state presented ample evi dence in the instant case to suggest that the victim suffered multiple injuries before he died. The evidence indicated that the three-month-old victim suffered a skull fracture and had multiple, separate bruises on his head, in addition to other wounds to the victim’s right arm and leg. These constitute multiple acts of child abuse and not the single act contemplated in Brooks.

Evidence of Prior Burn Injuries

Next, Moore argues that the trial court erred in admitting evidence of the victim’s prior burns which unquestionably occurred while in Moore’s sole custody because the state did not prove that these burns were the result of abuse. “Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.” Ward v. State, 59 So.3d 1220, 1222 (Fla. 4th DCA 2011) (citation and quotation marks omitted). “Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused where no reasonable person would take the view adopted by the trial court.” Id. (citation and quotation marks omitted).

The Williams rule has been codified in the Florida Evidence Code:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2007).

Courts have found that past incidents of child abuse are relevant in prosecutions for child abuse or first-degree murder of a child, in order to prove intent and also to prove absence of mistake or accident. In Evans v. State, 693 So.2d 1096 (Fla. 3d DCA 1997), the Third District thoroughly analyzed this issue and concluded:

[I]n a case charging the accused with the physical abuse of a child, where the state seeks to present evidence of prior physical abuse committed by the defendant upon the same child for the purpose of proving intent and/or absence of mistake or accident, there is no need for factual similarity between the charged offense and the prior abusive conduct beyond the existence of physical abuse in all instances.

Id. at 1102.

The Third District also quoted from Judge Pearson’s concurrence in State v. Everette, 532 So.2d 1124 (Fla. 3d DCA 1988), which we find particularly apt in the instant case:

That the abuse is not identical or even done under the same circumstances or in the same manner is of no moment where the identity of the abuser, as here, is not in issue. [The defendant’s] anticipated defense, gleaned from her statements to the police, is that the prior incidents occurred by accident or mistake. ... Surely a continuous series of such “accidents” is highly relevant to proving that what happened here was no accident.

Id. at 1125 (Pearson, J., concurring).

Based on all of Moore’s statements to Addison and to law enforcement, it is apparent that Moore’s anticipated defense to the charges that he abused and ultimately murdered his son was that the injuries were accidental. Because it is undisputed that Moore was the only person present when the victim sustained burn injuries on two prior incidents, there was no need for factual similarity between the prior burn injuries and the type of abuse which ultimately cost the victim his life. That Moore has claimed both burn incidents to have been accidents is of no import. There was clearly a connection between Moore and the collateral acts — the explanation he offered for the burns was for the jury to weigh. It does not render evidence of the incidents inadmissible.

Thus, the trial court did not abuse its discretion in admitting evidence of the two prior burn incidents.

In conclusion, we find that both points Moore raises on appeal are without merit. Therefore, we affirm.

Affirmed.

GERBER and CONNER, JJ., concur.

      . The state charged Moore with general first-degree murder, which encompasses both premeditated murder and felony murder.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . In fact, we find that the trial court carefully and thoughtfully exercised its discretion. The state also sought to admit evidence of the victim’s multiple fractured ribs in various states of healing. The trial court did not allow this evidence to be admitted because the older fractures could not be linked to Moore and because the newer fractures could have been caused by attempts to administer CPR on the victim on September 27, 2007.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Ludwige LOUISMA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4244.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

This appeal challenges an order of the trial court authorizing psychiatric medication and treatment for appellant, Lud-wige Louisma, an individual who was adjudicated incompetent to proceed to trial in a criminal matter and committed to the Department of Children and Families. He claims that no competent substantial evidence supports the finding that the involuntary administration of psychotropic medication was deemed necessary and essential by his multidisciplinary team, as required by section 916.107, Florida Statutes. Because there was no evidence that the testifying physician was a member of the team or that he discussed the need for medication with the team, we agree and reverse.

In August 2010, the circuit court adjudicated appellant incompetent to proceed in a criminal matter and committed him to the custody of the Department of Children and Families. A month later, Treasure Coast Forensic Treatment Center (“TCFTC”), the treatment center where appellant was under care, filed a petition for an order authorizing medical treatment, because appellant had refused to give express and informed consent to the treatment that TCFTC’s mental health professionals had recommended. This included the administration of anti-psychotic medications. Attached to the petition were the written opinions of two psychiatrists employed at TCFTC — Dr. LoPic-colo and Dr. Zawadzki — who each gave opinions consistent with the allegations in the petition. However, neither opinion stated whether the doctors were members of appellant’s multidisciplinary treatment team.

The case proceeded to a hearing before a magistrate in September 2010. At the hearing on the petition, Dr. LoPiecolo testified that he diagnosed appellant with psycho-effective disorder, bipolar type. He further opined that the diagnosis was made within a reasonable degree of medical certainty, and that appellant’s condition qualified as a mental illness under chapter 916, Florida Statutes. Dr. LoPiecolo developed a pharmaceutical treatment plan that would assist appellant in gaining competency. Appellant had at first consented to the administration of the drugs, but then refused further drug treatment. On cross-examination Dr. LoPiecolo was asked if he was a member of the team that meets with appellant. Dr. LoPiecolo did not directly answer the question, but instead responded as follows: “I am the medical executive director of the facility.” Dr. Lo-Piccolo explained that he was “covering for” appellant’s psychiatrists at the time.

When Dr. LoPiccolo first met with appellant, he observed that appellant was in a catatonic state. Appellant required several emergency treatment orders because he was not eating or taking fluids. Those emergency treatments brought appellant out of the catatonia. Dr. LoPiccolo testified that appellant’s chance of recovery without medication was poor, but his chance of recovery with medication was very good. Dr. LoPiccolo admitted that appellant’s catatonia had not returned even though appellant was not on medication. However, Dr. LoPiccolo explained that appellant could slip back into it.

Appellant also testified and continued his objection to the administration of the drugs. He claimed that he had been “faking” his medical condition and did not need the drugs.

At the close of the hearing, the magistrate granted the petition, finding that the medication was necessary for appellant to gain competency. The magistrate’s report listed Dr. LoPiccolo as the “Multidisciplinary Treatment Team Physician.” The order further stated that the treatment was necessary for the appellant’s mental illness and did not present any unreasonable risk of harm and that based upon Dr. LoPic-colo’s testimony, appellant was in immediate need of psychiatric medication and treatment pursuant to section 916.107(8)(a), Florida Statutes (2010). The circuit court adopted the magistrate’s report and recommended order authorizing treatment. This appeal follows.

Section 916.107(3)(a), provides that “[a] forensic client shall be asked to give express and informed written consent for treatment.” However, “[i]f a client refuses such treatment as is deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client,” such treatment may be provided under certain statutorily enumerated circumstances. § 916.107(3)(a), Fla. Stat. (2010) (emphasis added). For the court to enter an order authorizing treatment for which a client was unable to or refused to give express and informed consent, the court must determine by clear and convincing evidence “that the client has mental illness, retardation, or autism, that the treatment not consented to is essential to the care of the client, and that the treatment not consented to is not experimental and does not present an unreasonable risk of serious, hazardous, or irreversible side effects.” § 916.107(3)(a)3., Fla. Stat. (2010).

On appellate review of an order requiring a forensic patient to accept involuntary psychotropic treatment, “the record must contain competent, substantial evidence to support the trial court’s findings and to substantiate compliance with section 916.107.” Dinardo v. State, 742 So.2d 287, 289 (Fla. 1st DCA 1998). This requires the record to contain evidence “that the treatment is deemed necessary by the patient’s multidisciplinary team, that the patient has refused to give express and informed consent as defined in the statute, and that the trial court has considered at least the four factors specified in clauses ad of section 916.107(3)(a)3.” Id.

This record shows that the statutory requirements were not fulfilled. Case law requires that at least some evidence that the multidisciplinary team has discussed and approved the necessity of treatment be presented. In Meeker v. State, 584 So.2d 169 (Fla. 1st DCA 1991), the First District reversed an order which authorized specified drug treatment for a patient committed at a hospital, finding that the record did not show that the specific drug treatment ordered by the ti'ial court was “treatment ... deemed necessary by the patient’s multidisciplinary treatment team at the forensic facility” within the terms of section 916.107(3)(a). Noting that the physician who testified did state the necessity of such treatment, nevertheless the statute required evidence that the treatment team found the medication necessary:

The testimony of the prescribing physician does on its face adequately support some degree of medical need. And by inference we might, even absent specific testimony, conclude as appellee urges that the prescribing physician was a member of the treatment team. Even further assuming, without deciding, that the treatment team might have delegated to the treating physician blanket authority to administer non-experimental drugs, no such delegation was alleged or proven.
We recognize, of course, that the treatment team in a forensic facility may consist of many professional disciplines, and that only those members who are physicians may prescribe drugs. But we are nevertheless obliged to accord some effect to the legislative choice of terms when it provided that the only treatment which may be judicially compelled pursuant to the statute, supra, is treatment “deemed necessary by the treatment team. ” We are unable to find in the record here any compliance in form or substance with that requirement.

Id. at 170 (emphasis added). See also Vaughn v. State, 705 So.2d 951 (Fla. 1st DCA 1998) (holding that treatment order’s conclusory findings failed to comport with the requirements delineated in Meeker where the lower court made no reference to the multidisciplinary treatment team in the order or whether the team had deemed the treatment to be necessary as required by section 916.107, and such a finding could not be substantiated based upon record evidence); Hills v. State, 706 So.2d 103 (Fla. 1st DCA 1998) (holding that record was devoid of any evidence that patient’s treatment team deemed necessary or delegated to the patient’s psychiatrist the treatment decision).

Similarly, in Ungerbuehler v. State, 729 So.2d 954 (Fla. 1st DCA 1998), the First District reversed an order authorizing medical treatment without the patient’s consent, holding that the State “presented absolutely no evidence that the multidisciplinary team deemed the treatment to be necessary, as required by section 916.107(3)(a), Florida Statutes.” Id. at 954. The court reasoned: “The psychiatrist, the only person who testified in the instant case, did not indicate that she spoke on behalf of the multidisciplinary team, nor was there testimony that the psychiatrist had discussed the necessity of medication with the treatment team.” Id. at 954-55.

Even Dinardo v. State, 742 So.2d 287 (Fla. 1st DCA 1998), cited by the state, fails to support a finding that the record is adequate in this case. There, the First District found that the record did contain competent substantial evidence that Dinar-do’s multidisciplinary team had found the medications necessary. Dinardo’s attending psychiatrist, a member of his multidisciplinary team, testified that “medication listed in the order on appeal ‘had been discussed with and found necessary by [the appellant’s] treatment team.’ ” Id. at 289. In contrast, Dr. LoPiccolo was not appellant’s attending psychiatrist and did not testify that he was a member of the multidisciplinary team or that he had discussed the need for the medication with the team.

Because the record is devoid of evidence complying with the statutory requirement that the appellant’s multidisciplinary team deemed the treatment requested to be necessary, we reverse the order authorizing treatment and remand for further proceedings.

POLEN, J., and EHRLICH, MERRILEE, Associate Judge, concur.


author: STEVENSON, J.

text:
    Kelley Lynn REED, both individually and o/b/o Abby Lynn Reed, a minor child, Appellant, v. Rollin F. BLANSHINE and Department of Revenue, Appellees.
    Nos. 4D10-3370, 4D10-3371.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Stuart N. House of Giunta & House, P.A., Fort Lauderdale, for appellant.
    Catherine L. Roselli, Fort Lauderdale, for appellee Rollin F. Blanshine.
   STEVENSON, J.

Kelly Lynn Reed, the mother of minor child Abby Lynn Reed, challenges the trial court’s denial of her motions to intervene in child support and child custody proceedings for the purposes of challenging the validity of an agreement providing for termination of the child’s father’s parental rights and of an order approving such agreement. As we agree that intervention was not the appropriate vehicle to raise such a challenge, we affirm the orders appealed.

The Department of Revenue initiated proceedings to establish Rollin Blanshine as the father and to require him to pay medical support and child support (case number 09-611). In turn, and within the confines of the Department of Revenue proceedings, Blanshine filed a petition seeking custody of the minor child and child support from the child’s mother. It was agreed that Blanshine’s custody petition would be transferred to a new lower court case number (case number 09-15176). Thereafter, the mother and father entered into an agreement providing the father would consent to termination of his parental rights and the mother would agree to withdraw the action for child support. The trial court subsequently entered an order in the custody case approving the parties’ stipulated agreement and terminating the father’s parental rights.

Several months later, the mother filed a “Motion to Intervene” in both lower court case numbers. The motions alleged the mother was seeking to intervene in the proceedings, individually and on behalf of the minor child, for the purpose of challenging the agreement and the order terminating parental rights as the termination had deprived the child of support and a father/child relationship. The trial court denied the motions to intervene, indicating the mother’s remedies, if any, “lie in # 09-15176 [the custody case] ... with Kelley Lynn Reed as Petitioner.” In this appeal, the mother challenges the denial of her motions to intervene.

There is no question that the parents’ agreement for termination of the father’s parental rights and the subsequent order adopting such agreement are void and subject to challenge. See, e.g., Casbar v. Dicanio, 666 So.2d 1028 (Fla. 4th DCA 1996) (recognizing that termination of parental rights can be accomplished only by resort to chapters 63 (adoption) and 39 (termination of parental rights) and any attempt by a parent to contract away the child’s right to support is void and unenforceable as contrary to public policy); Fleming v. Brown, 581 So.2d 202 (Fla. 5th DCA 1991). The trial court correctly ruled, however, that intervention in the concluded child custody case is not the proper vehicle for the mother or the child to challenge the agreement and resulting order. See In re Adoption of a Minor Child, 593 So.2d 185, 189-90 (Fla.1991) (recognizing intervention is generally impermissible after entry of final judgment and exception allowing post-judg ment intervention in the interests of justice “is limited to permitting intervention by affected persons so that an appeal can be taken”). The motion for intervention filed in the DOR proceeding was appropriately denied as the order approving the parties’ agreement and terminating parental rights was entered in the custody proceedings — not the DOR proceeding. We thus affirm the orders appealed.

Our affirmance is, however, without prejudice to the rights of the mother or the minor child (through an appropriate representative or next Mend pursuant to Florida Rule of Civil Procedure 1.210(b)), to challenge the agreement and order approving the same in a motion for relief from judgment or in a newly-initiated proceeding. See Casbar, 666 So.2d at 1029-30 (reversing denial of mother’s motion to set aside final order terminating father’s parental rights pursuant to agreement of parties and dismissal of child’s separate petition to determine paternity and child support).

Affirmed.

HAZOURI and LEVINE, JJ., concur.

      . The orders appealed were entered in two lower court case numbers. The order in lower court case number 09-611 was appealed in case number 4D10-3370 and the order in lower court case number 09-15176 was appealed in case number 4D10-3371. We sua sponte consolidate the appeals.


author: PER CURIAM.

text:
    Donald J. MACK, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-4276.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Donald J. Mack, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Donald Mack sought appellate review of an order striking his motion to reduce his sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We treat the appeal as a petition for certiorari and grant relief based on Schlabach v. State, 37 So.3d 230 (Fla.2010). See also In re Amendments to Florida Rule of Criminal Procedure 3.800(c), 76 So.3d 913 (Fla.2011). Consequently, we quash the order and remand the matter for the trial court to consider the merits of Mack’s motion.

Petition Granted; Order Quashed; Remanded.

WARNER, STEVENSON and LEVINE, JJ., concur.


text:
    Bobby E. McCLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3518.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2012.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant

      Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Flaqq v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ORFINGER, C.J., MONACO and COHEN, JJ., concur.


text:
    A.T.J.F., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4191.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Juvenile A.T.J.F. appeals the trial court’s revocation of his probation and resulting sentence in this Anders appeal. Finding no issue of arguable merit, we affirm the trial court’s orders revoking appellant’s probation and lifting its previously entered stay of sentence. However, the record contains only disposition orders, so we remand to the trial court for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. See Brown v. State, 10 So.3d 1203 (Fla. 4th DCA 2009); Nagy v. State, 993 So.2d 601 (Fla. 4th DCA 2008); Riley v. State, 884 So.2d 1038 (Fla. 4th DCA 2004).

Affirmed, but remanded.

TAYLOR, GERBER and LEVINE, JJ., concur.

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


text:
    Juan Samuel RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4238.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Carey Haughwout, Public Defender, Tom Wm. Odom, and Nauman Siddique, Assistant Public Defenders, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

In this Anders appeal, we affirm the order revoking appellant’s probation and imposing sentence, but remand for entry of a written order of revocation of probation specifying the condition appellant was found to have violated. Mills v. State, 948 So.2d 994 (Fla. 4th DCA 2007).

Affirmed, but remanded.

TAYLOR, GERBER and LEVINE, JJ., concur.

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


text:
    George BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4824.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    ■ George Brown, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Arce v. State, 762 So.2d 1003 (Fla. 4th DCA 2000).

WARNER, POLEN and CIKLIN, JJ., concur.


text:
    Demond CROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5615.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Demond Crooks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about August 6, 2010, denying petitioner’s amended motion for post-conviction relief in Bay County Circuit Court Case Number 93-2523-C, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

PADOVANO, ROBERTS, and SWANSON, JJ., concur.


text:
    Robert B. TALBOT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3442.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Robert B. Talbot, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about March 17, 2011, in Wakulla County Circuit Court case numbers 09-92-CF and 09-147-CF, is granted. Upon issuance of a mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

PADOVANO, ROBERTS, and SWANSON, JJ., concur.


text:
    Angela CALLOWAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6669.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Angela Calloway, pro se; and Sandra Atkins Painter, Southport, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about March 3, 2009, in Jackson County Circuit Court Case Numbers 07-471 and 08-835-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent her in the appeal authorized by this opinion.

PADOVANO, ROBERTS, and SWANSON, JJ., concur.


text:
    Timothy John ERLSTEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1081.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Timothy John Erlsten appeals the summary denial of his untimely and successive Rule 3.850 motion. Appellant contends that he was convicted of a nonexistent crime which constitutes a “fundamental error” that can be corrected at any time. We disagree and affirm.

In August 1998, appellant snatched a seven-year-old girl as she was walking to a park with her eleven-year-old sister. He carried her off and took her in his car to an abandoned road where he vaginally and anally penetrated her. In 1999, a jury convicted appellant of aggravated kidnapping in violation of section 787.01(3)(a), Florida Statutes (1997) and lewd, lascivious, or indecent act upon a child under sixteen in violation of section 800.04, Florida Statutes (1997).

The court sentenced him to life in prison as a habitual violent felony offender (HVFO) and prison releasee reoffender (PRR) for the aggravated kidnapping and a concurrent term of thirty years in prison as a habitual felony offender (HFO) and PRR for the lewd, lascivious, or indecent act. This court affirmed on direct appeal without written opinion. Erlsten v. State, 773 So.2d 555 (Fla. 4th DCA 2000).

In 2001, he filed his first Rule 3.850 motion which was summarily denied but reversed and remanded as to a sleeping juror claim. Erlsten v. State, 842 So.2d 967 (Fla. 4th DCA 2003). The claim was subsequently denied and affirmed without opinion. Erlsten v. State, 900 So.2d 567 (Fla. 4th DCA 2005).

In 2008, appellant filed this untimely and successive Rule 3.850 motion. He raised two claims: (1) that he was convicted of a nonexistent crime because he could not be convicted of lewd, lascivious, or indecent acts upon a child less than sixteen years of age for conduct that also constituted the crime of sexual battery under Jozens v. State, 649 So.2d 322 (Fla. 1st DCA 1995) and Beck v. State, 732 So.2d 427 (Fla. 1st DCA 1999) and (2) that he could not be sentenced as an HVFO and PRR.

The court granted claim 2 and resen-tenced Erlsten to life in prison as a PRR for the aggravated kidnapping and thirty years in prison as an HFO with a fifteen-year mandatory minimum as a PRR on the lewd, lascivious or indecent acts count. The court summarily denied claim 1 based on the State’s response which argued that the claim was procedurally barred. This appeal follows.

The procedural bars that prohibit the filing of untimely and successive post-conviction motions are critical to the proper administration of justice. Fla. R.Crim. P. 3.850(b), (f). Were the courts of this state filled with stale, repetitive, and successive postconviction motions raising claims in a piecemeal fashion, then justice for those raising timely, legitimate claims would be delayed and may ultimately be denied. For these reasons, a defendant seeking to bring an untimely or successive postconviction motion must meet strict requirements for establishing the narrow exceptions to these procedural bars. See, e.g., Fla. R.Crim. P. 3.850(b)(1); Christopher v. State, 489 So.2d 22, 24 (Fla.1986).

In extremely rare cases, which presented extraordinary and compelling circumstances, courts have relaxed the procedural bars in order to correct a manifest injustice. See, e.g., Johnson v. State, 9 So.3d 640 (Fla. 4th DCA 2009). This court has recognized that a conviction for a truly nonexistent crime is one circumstance that may warrant relaxing the procedural bars and merit correction at any time. Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006).

Erlsten was charged by amended information and convicted in Count II under section 800.04, Florida Statutes (1997), which provided in relevant part:

A person who:
(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;
(2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act;
(3) Commits an act defined as sexual battery under s. 791.011(1)(h) upon any child under the age of 16 years; or
(4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 800.04, Fla. Stat. (1997) (emphasis added).

For Count II, the information alleged as follows:

August 05,1998 Timothy John Erlsten did unlawfully handle, fondle or assault [the victim], a child under 16 years, in a lewd, lascivious or indecent manner or did knowingly commit a lewd or lascivious act in the presence of such child, or did commit an act defined as sexual battery upon such child, in violation of Florida Statutes 800.01.

(emphasis added).

Appellant argues that, because the jury returned a general verdict, he may have been convicted of a “nonexistent crime” which is a “fundamental error” that can be raised at any time. He contends that he is entitled to a new trial on Count I because the kidnapping charge may have been aggravated based on this alleged non-existent crime.

In dozens, 649 So.2d at 323, the court concluded that the charge under section 800.04(3) was “fatally flawed” because “[u]nder section 800.04(3), one cannot be convicted of a lewd and lascivious act committed upon a child under 12 years of age for conduct that also constitutes the crime of sexual battery under section 794.011.” The information in dozens charged that the defendant committed a lewd, lascivious or indecent act by “committing a sexual battery upon [the victim].” The court appears to have found that this conflicted with the “without committing the crime of sexual battery” language and rendered the entire count fatally flawed. Id. at 324. Importantly, the defendant in dozens had been charged with sexual battery in a separate count, but the jury acquitted the defendant of the sexual battery and convicted him of simple battery, a lesser offense. See also Beck v. State, 732 So.2d 427 (Fla. 1st DCA 1999) (remanding for new trial where it was impossible to tell from the general verdict on what basis the jury convicted).

dozens and Beck were both direct appeal cases. The court in dozens, unable or unwilling to reconcile the conflict perceived in the language of the statute, found that the error was fundamental and could be raised on direct appeal despite the lack of preservation. In so holding, the court employed overbroad language: “The complete failure of an information to charge a crime is a defect that can be raised at any time.” 649 So.2d at 324. This language is dicta. Jozens and Beck do not stand for the proposition that a challenge to the manner in which a section 800.04 offense was charged can be raised “at any time,” including in an untimely and successive postconviction motion.

Fundamental errors that can be raised for the first time on direct appeal despite the lack of preservation are not necessarily errors that can be corrected at any time. Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009). The “fundamental error” terminology has been used haphazardly in some postconviction decisions and misused by prisoners seeking to raise untimely or successive post-conviction claims. See Hughes v. State, 22 So.3d 132, 137 (Fla. 2d DCA 2009). The focus in this postconviction posture is whether injustice is manifest.

We find that Jozens is distinguishable. In this case, appellant was not charged, tried, or convicted of capital sexual battery on a child under twelve. See § 794.011(2)(a), Fla. Stat. (1997). The information in this case did not contain the language that the court in Jozens found rendered the count fatally flawed. Jozens, 649 So.2d at 324 (“[W]e find that the state’s use of the phrase ‘by committing sexual battery upon said child’ rendered the entire count fatally flawed.”).

We agree with then-judge Pol-ston’s well-reasoned dissent in Palmer v. State, 838 So.2d 579, 580-82 (Fla. 1st DCA 2002). The phrase “without committing the crime of sexual battery” is not applicable to this case, and the prosecutor had discretion whether and how to prosecute. Id. at 581. The State opted not to prosecute for capital sexual battery. The legislature clearly intended the lewd, lascivious, and indecent act statute to prohibit and criminalize sexual intercourse and acts defined as sexual battery when committed upon those less than sixteen years of age. Ch. 84-86, § 5, at 264-65, Laws of Fla.; State v. Hightower, 509 So.2d 1078 (Fla.1987). The charge under section 800.04(3), Florida Statutes (1997), which alleged that defendant committed “an act defined as sexual battery,” was not “fatally flawed” and did not fail to charge a crime.

Appellant in this case was not convicted of a non-existent crime. The postconviction court correctly concluded that the claim was procedurally barred. We perceive no injustice in allowing this conviction to stand.

Affirmed.

GROSS, CIKLIN and LEVINE, JJ„ concur.

      . The information charged that the kidnapping was aggravated because in the course of committing the offense appellant committed a sexual battery or lewd, lascivious, or indecent act.

      . In 1999, the legislature amended the statute and removed the "without committing a sexual battery" language. Ch. 99-201, § 6, Laws of Fla.


author: GERBER, J.

text:
    Parmanand MAHARAJ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-491.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Barbara J. Scheffer, Palm Beach Gardens, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his convictions for sexual battery on a person less than twelve years of age, lewd and lascivious molestation, and providing obscene material to a minor. He raises several arguments, three of which have merit: (1) the trial court erred in not finding that the state opened the door to certain cross-examination questions; (2) the trial court erred in not allowing impeachment of the child’s testimony; and (3) the trial court erred in overruling his objection to a portion of the state’s closing argument. We address these three arguments in turn.

Opening the Door

The child’s mother read statements in the child’s notebook which prompted the mother to contact the police about the defendant. During the state’s case-in-chief, the state played for the jury an audiotape containing a series of controlled calls between the mother and the defendant involving the notebook. On the first call, the mother told the defendant: “I found a notebook and I just want to make sure, I don’t think these are true some of the stuff I was reading, and maybe she doesn’t have the story right.” The defendant told the mother he would call her back.

On a later call, the mother again referred to the notebook, prompting the following exchange:

Mother: ... [A]m I reading too much into this? ... This is what I think happened. [The child] walked into your house [and] you were watching porn, maybe you’re a little embarrassed, I don’t care but I’m going to be [angry] at her for walking into your house when — I think [the child] walked right into your house and [you] were watching [a] porno movie and you were embarrassed, and that’s what I think exactly happened, but I want to hear from you exactly what happened. If that’s the case, I know I raised [the child] better than that, is that what [the child] did, just walked right in your house?
Defendant: That’s right.
Mother: ... Then I know there was something else [the child] wrote about. She wrote about something too about kissing somebody, but I understand if that’s the case that it happened, I’ll punish [the child] for that, but the other thing she said something about kissing, I think all she did, all she was referring to ... is her and her friend was trying to outdo each other, I seen her hugging you and your wife, she likes you guys, I think that’s what she had seen, maybe you had kissed her on the cheek ... maybe that’s what she’s referring to; could that be?
Defendant: That’s it.
Mother: All right, then I’ll deal with [the child] writing stuff like that, because I don’t want you to get into trouble for something you didn’t do, this is— this can hurt somebody, okay, I’ll talk with [the child].

After the state played these calls, the defendant requested the trial court’s permission to cross-examine the mother on the notebook’s contents. The defendant proffered the notebook’s contents:

I, in a public pizza after drinking a soda, was a famous radio announcer, and I know a — me and tried to do, I am a year old boy in — I’ve a — I’ve got an — on a — I never showed my mom I was in two grade. I also got one in three grade. I — a—and made him, the same guy got big plants, so he could hide one chair and do nasty things. He showed me, he kissed me and forced me to kiss his blank ER and shoved his hand down my pants.
The guy got Chinese while his wife was in Canada, and put a sleeping pill in my Pepsi and gave it to my aunt. One time at school my mom dropped me of with $20 for picture money, and I flunked school, and I went to the movie and Publix.

The defendant requested the trial court’s permission before proceeding because the court, earlier in the trial, had ruled that the notebook’s contents were irrelevant and hearsay. Following the playing of the calls, however, the defendant argued, “I think it’s relevant that portions come in now ... the jury’s left with the impression that [the child] had a notebook that addressed only [the defendant], that’s not true.” The court ruled that it would allow the defendant to ask the mother if there was anything in the notebook which named the defendant, “[b]ut you can’t ask her ... what was in the notebook based on my prior ruling.”

The defendant argues that the trial court erred in not finding that the state opened the door to allowing him to cross-examine the mother about the notebook’s contents. The state argues that any error was harmless because the court allowed the defendant to elicit from the mother that the notebook did not refer to him by name.

The standard of review of a determination of whether a party has opened the door is abuse of discretion as limited by the rules of evidence. Shermer v. State, 16 So.3d 261, 265 (Fla. 4th DCA 2009) (citation omitted). As we recently stated in Siegel v. State, 68 So.3d 281 (Fla. 4th DCA 2011):

The evidentiary concept of “opening the door” allows the admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or evidence previously admitted. This principle is premised on considerations of fairness and the truth-seeking function of a trial. In order to open the door, the witness must offer misleading testimony or make a specific factual assertion which the opposing party has the right to correct so that the jury will not be misled.

Id. at 288 (citations and other internal quotations omitted).

Applying those standards here, we conclude the trial court erred in not finding that the state opened the door to allowing the defendant to cross-examine the mother about the notebook’s contents. The mother’s comments during the calls would have left a reasonable juror with the impression that the notebook referred to the defendant. This impression likely would not have been alleviated by the mother’s testimony that the notebook did not refer to the defendant by name. After all, it was the mother’s reading of the notebook which prompted her to contact the police about the defendant in the first place. Further, the mother’s comment on the first controlled call about “some of the stuff I was reading” may have left a reasonable juror with the impression that the child wrote more statements in the notebook other than those which the mother mentioned in the calls. However, the defendant was not given an opportunity to clarify or impeach the mother’s characterization of the notebook’s contents or to present to the jury the manner in which the child wrote the statements.

The state has not proven this error to be harmless. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”). Once the state mentioned the notebook’s existence through the introduction of the controlled calls, a reasonable juror would have found the notebook’s contents to be very significant. That is because, by the time the child testified, several months had passed, during which the child had discussed the matter with at least four adults — her mother, the investigating detective, the child protection team investigator, and the prosecutor. The notebook, however, was written contemporaneously and without the possibility of outside influence. Yet the jurors were left to speculate as to its contents rather than being allowed to see this key piece of evidence for themselves. Thus, a reasonable possibility exists that allowing the jury to speculate as to the notebook’s contents contributed to the conviction. This error, by itself, is sufficient to require reversal for a new trial.

We now address two other errors which, by themselves, may not have been sufficient to require reversal for a new trial. However, we address them to preclude their repetition at the new trial.

Impeachment

The defendant lived in the same apartment building as the child’s aunt. During the state’s case-in-chief, the child testified on cross-examination of having told her aunt that the defendant had “touched her.” During the defendant’s case-in-chief, the defendant called the aunt as a witness. Before beginning direct examination, the defendant requested that he be able to impeach the child’s testimony by asking the aunt whether the child ever said anything to her about being abused. In support of this request, the defendant represented that the aunt testified at deposition that the child never complained to her of sexual or physical abuse. The trial court denied the request, finding that such evidence would constitute impeachment on a collateral matter.

The defendant argues that this evidence was not a collateral matter but went to the heart of his defense that the child fabricated the allegations. The state conclusorily responds that the trial court did not abuse its discretion in finding the testimony inadmissible.

The standard of review for a refusal to permit impeachment on the ground that the impeachment involved a collateral matter is abuse of discretion as limited by the rules of evidence. Ocasio v. State, 994 So.2d 1258, 1261 (Fla. 4th DCA 2008) (citation omitted). Section 90.608(5), Florida Statutes (2009), provides that “[a]ny party ... may attack the credibility of a witness by ... [p]roof by other witnesses that material facts are not as testified to by the witness being impeached.” (emphasis added).

Applying those standards here, we conclude the trial court erred in not allowing this impeachment. Although the child’s alleged act of speaking to her aunt was not material, the content of that alleged speech was material. The child testified she told her aunt that the defendant had “touched her.” That statement summed up two of the three charges for which the defendant was on trial. Thus, allowing the defendant to ask the aunt whether the child ever said anything to her about being abused would not have constituted impeachment on a collateral matter.

Closing Argument

During closing argument, after applying the evidence to the elements of each charge, the state told the jury that “in order to find the defendant not guilty you would have to discredit — ”, at which point the defendant objected with “[i]m-proper argument.” At sidebar, the court requested the state to complete the sentence it was telling the jury. The state responded, “You would have to discredit what [the child] testified, what information was provided during [the child’s] testimony.” The defendant replied that such an argument would be improper because “[the jury has] to decide whether or not the State proved [its] case beyond a reasonable doubt.... [I]t’s not whether or not a witness is telling the truth or lying or not.” The court overruled the objection at sidebar. Despite the favorable ruling, the state did not finish the sentence in front of the jury. Instead, the state rephrased its argument: “[I]f you find that [the child’s] testimony was credible, if you have an abiding conviction of guilt, you must find the defendant guilty.” During the state’s rebuttal argument, the state told the jury “this boils down to, do you believe [the child].” The state then summarized the child’s testimony again and ended with “[D]o you believe that? If you do, the State’s proven its case.” The defendant objected. The trial court overruled the objection.

The defendant moved for a mistrial shortly thereafter. The defendant argued that the state’s comments improperly shifted the burden of proof to him because the comments insinuated he needed to prove that the child was lying in order to be found not guilty. The trial court denied the motion. The court found that the state rephrased its initial comment and made its later comments in the context of instructing the jury to weigh the evidence and decide whether the state proved every element of its case.

The defendant argues that the trial coui't erred in overruling his objection to the state’s initial comment and in denying his motion for mistrial. The defendant maintains that the state’s comments regarding the child’s credibility improperly shifted the burden of proof to him. The state responds that its comments, when read in context with the rest of the argument, were proper because it simply was informing the jury to weigh the child’s credibility and decide whether the state proved every element of its case.

We review the trial court’s rulings for an abuse of discretion. See Wicklow v. State, 43 So.3d 85, 87 (Fla. 4th DCA 2010) (“Improper prosecutorial closing argument is reviewed under an abuse of discretion standard.”); Joseph v. State, 41 So.3d 307, 311 (Fla. 4th DCA 2010) (a trial court’s denial of a motion for mistrial based on an argument that the state improperly shifted the burden of proof during closing argument is reviewed for an abuse of discretion).

Applying the foregoing standard, we conclude that the trial court erred in overruling the defendant’s objection to the state’s initial comment. It would have been improper for the state to comment “in order to find the defendant not guilty, you would have to discredit the child’s testimony.” See Northard v. State, 675 So.2d 652, 653 (Fla. 4th DCA 1996) (impermissible for state to argue “in order to find him not guilty you’re going to have to believe that the defendant was telling the truth and the officer was lying” because it misstates the burden of proof).

However, the trial court did not err in denying the motion for mistrial. The state did not complete the improper comment before the defendant objected at the word “discredit.” Moreover, despite the court overruling the objection at sidebar, the state did not complete the improper comment to the jury. Instead, the state rephrased its argument to suggest that the child’s testimony was credible and that the child’s credible testimony proved the elements of its case. All of this came after the state applied the evidence to the elements of each charge. This course of events rendered harmless the court’s error in overruling the defendant’s objection to the state’s improper comment. See Covington v. State, 842 So.2d 170, 173-74 (Fla. 3d DCA 2003) (trial court’s error in overruling prosecutor’s closing argument, that issue came down to whether the jurors believed the police officer or a defense witness, was harmless where the court overruled the objection at sidebar, but the prosecutor then made a correct statement that the officer’s testimony was sufficient for the state to carry its burden of proof). While the state could have more artfully argued that the child’s testimony proved the elements of each charge, we conclude that the state’s comments, in the context of the entire closing argument and the entire trial, were not so “prejudicial and fundamental that it denie[d] the accused a fair trial.” Dunlap v. State, 21 So.3d 873, 876 (Fla. 4th DCA 2009) (citation omitted).

Based on the foregoing conclusions for which reversal was required, however, we remand for a new trial. For the trial court’s and the parties’ guidance in the new trial, we conclude that the other arguments which the defendant has raised in this appeal, but which we have not addressed in this opinion, are without merit.

Reversed and remanded for a new trial.

CIKLIN and CONNER, JJ., concur.


author: STEVENSON, J. MAY, C.J.,

text:
    Christine D. STUBBS, Appellant, v. SURGI-STAFF, INC. and Lorenzo Rivera, Appellees.
    No. 4D10-691.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Rehearing Denied Feb. 17, 2012.

      Elliott D. Goldberg, Fort Lauderdale, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellees.
   STEVENSON, J.

In her Second Amended Complaint, Christine Stubbs alleges that hospital orderly Lorenzo Rivera instructed her to move from a test bed to a gurney and that she fell while attempting this due to Rivera’s negligence in failing to exercise reasonable care in assisting her and in failing to prevent her fall. Rivera and his employer, Surgi-Staff, Inc., ultimately moved for summary judgment, arguing the undisputed facts demonstrated Stubbs’ claims were ones for medical negligence and thus barred by the relevant statute of limitations and the failure to comply with Florida Statutes chapter 766’s pre-suit requirements. The trial court agreed and entered final judgment in favor of the defendants. In this appeal, Stubbs challenges that ruling. We affirm.

A claim for negligence is subject to chapter 766’s pre-suit requirements and a two-year statute of limitations “if ‘[t]he wrongful act [is] directly related to the improper application of medical serviees[ ] and the use of professional judgment or skill.’ ” Corbo v. Garcia, 949 So.2d 366, 368 (Fla. 2d DCA 2007) (quoting Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla. 3d DCA 1997)). “‘The key inquiry ... is whether the action aris[es] out of ... medical ... diagnosis, treatment, or care.’ ” Id. (quoting Fassy v. Crowley, 884 So.2d 359, 364 (Fla. 2d DCA 2004)). “The injury must be a direct result of receiving medical care or treatment by the healthcare provider.” Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469 (Fla. 3d DCA 2006). Where the relevant underlying facts are undisputed or must be taken as true given the procedural posture of the case, the question of whether the alleged negligence arises out of the provision of medical care or treatment is one of law. See S. Baptist Hosp. of Fla., Inc. v. Ashe, 948 So.2d 889, 890 (Fla. 1st DCA 2007).

Together, Stubbs’ deposition and Rivera’s affidavit establish the following undisputed facts. Stubbs was given contrast dye for a CT scan. Prior to the procedure, she was introduced to Rivera, a nurse, not an orderly as alleged in the complaint. During the scan, Stubbs began to vomit. After the scan was complete, the CT technician called Rivera into the room to assess Stubbs, believing she was suffering an allergic reaction to the dye. Rivera instructed Stubbs to move from the CT table to a gurney he brought into the room, but Stubbs fell and was injured when she attempted to get off the table and move to the gurney. Subsequently, Rivera gave Stubbs oxygen and attached EKG leads and she was treated by ER doctors.

We find that the trial court correctly applied the controlling case law in concluding that the complaint sounded in negligence attributable to Rivera’s provision of medical care and services. Compare Neil-inger v. Baptist Hosp. of Miami, Inc., 460 So.2d 564, 566 (Fla. 3d DCA 1984) (finding that action arose from the provision of medical care and services where maternity patient sued hospital for negligence based on injuries sustained when she “slipped and fell on a pool of amniotic fluid while she was descending from an examination table under the direction and care of hospital employees”), and Indian River Mem’l Hosp., Inc. v. Browne, 44 So.3d 237 (Fla. 4th DCA 2010) (holding that claims of disoriented 76-year-old, who was admitted to ER and fell out of stretcher, alleging, among other things, negligence in failing to engage and/or properly secure railings, and failing to follow hospital rules and procedures to prevent falls were claims arising out of provision of medical care or services), with Quintanilla, 941 So.2d at 470 (holding allegations of negligence based on nurse’s spilling hot tea on patient were claims of ordinary negligence not claims of negligence in provision of medical care or services), and Tenet St. Mary’s, Inc. v. Serratore, 869 So.2d 729 (Fla. 4th DCA 2004) (holding that patient’s claim alleging he was injured when, following dialysis treatment, hospital employee attempted to return patient’s chair to an upright position by kicking footrest and, instead, kicked patient was one sounding in ordinary negligence).

As in Neilinger v. Baptist Hospital of Miami and Indian River Memorial Hospital, Inc. v. Browne, we find that the gravamen of the negligence alleged in the instant case arose from the provision of medical care and services. Having considered the remaining issues raised, we affirm the final summary judgment on review.

Affirmed.

CIKLIN, J., concurs.

MAY, C.J., specially concurs with opinion.

MAY, C.J.,

specially concurring.

I concur in the majority opinion and write to express my concern about the proverbial slippery slope we have travelled down when we began to dissect every minute of a medical procedure to determine if something that occurs during the procedure is medical negligence or general negligence. Not surprisingly, this issue most often arises when someone has missed the two-year statute of limitations or failed to comply with the pre-suit screening process for a medical negligence claim. When that happens, lawyers creatively argue that, notwithstanding the plaintiff was a patient undergoing a medical procedure, the moment in time when the plaintiff was injured involved general negligence. In my view, once a medical procedure has begun, whatever happens during that procedure should be subject to the requirements for filing a medical negligence action if the allegations are directed at medical personnel.

      . These same documents suggest there is a dispute as to whether Stubbs told Rivera she was weak and dizzy and did not believe she could move to the gurney or whether Stubbs told Rivera she felt capable of doing so and a dispute as to whether, after the fall, Rivera believed Stubbs should immediately seek further treatment or go home. These disputes, though, are not germane to the critical question — whether Rivera was providing medical care or services when he instructed Stubbs to move to the gurney and when Stubbs fell.


author: MAY, C.J.

text:
    Willie F. MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1595.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his conviction and sentence for delivery of cocaine. He argues the court erred in two ways: (1) denying his motion for judgment of acquittal; and (2) entering a sentencing order that did not conform to the court’s oral pronouncement. We find no error in the denial of the defendant’s motion for judgment of acquittal, but agree that the sentencing order fails to conform to the court’s oral pronouncement. We therefore affirm in part and reverse in part.

After the jury returned a guilty verdict on the delivery of cocaine charge, the trial court adjudicated the defendant guilty, and sentenced him as a habitual felony offender. The trial court orally pronounced the sentence as seven years of prison, followed by eight months of probation. The written sentencing order, however, indicated eight years rather than eight months of probation.

“[A] court’s oral pronouncement of a sentence controls over the written sentencing document. When the written document results in a sentence that is more severe than the sentence announced in court, ...” the sentence is illegal. Williams v. State, 957 So.2d 600, 603 (Fla. 2007).

Here, the written sentence reflects an eight-year term of probation to follow the term of imprisonment, but the trial transcript reflects an oral pronouncement of seven years imprisonment followed by eight months of probation. The oral sentence is not ambiguous. Nevertheless, the State does not concede error. It contends the trial court either misspoke or the transcript is wrong because, later that day, the trial court sentenced a defendant in another case to a term of imprisonment followed by eight years of probation to be served concurrently.

Notwithstanding the State’s alternative theories, “[wjhere there is no ambiguity in the trial court’s oral pronouncement, the sentencing order must be corrected to reflect the oral pronouncement. Only where there is an ambiguity in the oral pronouncement is there a need for the court to make a factual determination before making the correction.” Moreland v. State, 853 So.2d 574, 575 (Fla. 4th DCA 2003). Here, there is no ambiguity.

We therefore reverse the sentence and remand the case to the trial court to conform the written sentence to the oral pronouncement.

Affirmed in part; Reversed in part and Remanded.

HAZOURI and DAMOORGIAN, JJ., concur.

      . The defendant filed a Motion to Correct Sentencing Error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because the trial court failed to rule on the motion within sixty days, it is considered denied. Fla. R.Crim. P. 3.800(b)(1)(B).


text:
    Karleen Doris BONOW, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1712.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, CLARK, and ROWE, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    K.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-685.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2012.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

K.W. seeks review of the order withholding adjudication and placing her on juvenile probation for leaving the scene of a crash involving injury. K.W. argues that the trial court erred in denying her motion for judgment of dismissal because the evidence did not establish that she knew or should have known that the crash involved injury. We agree and reverse.

On the morning of November 6, 2010, an officer arrived at the scene of a reported accident on 1-275 involving an overturned vehicle. While he was investigating the crash, a car pulled up. The driver of the car told the officer that a person who was involved in the accident was inside the car. K.W. was that person, and she told the officer she had been driving.

James Williamson, the man in the overturned vehicle, was the only eye-witness to the crash to testify. Williamson said he was driving south on 1-275 when his car was struck by another car and rolled over. Williamson, who had sustained head and back injuries, had not seen who hit him or where on his vehicle the impact occurred. He guessed that his vehicle was probably hit on the right rear. He was not sure how fast he was driving, but he believed it was around the speed limit. He understood that whoever hit his vehicle hit another vehicle first.

The only evidence regarding the extent of KW.’s involvement in the accident came from the investigating officer’s testimony that the left rear of K.W.’s car had sustained damage. The third vehicle involved in the crash was found on Dale Mabry Highway. There was no information regarding the extent of its involvement in the crash or where it sustained damage.

The question before this court is whether the State presented sufficient evidence of K.W.’s intent to survive a judgment of dismissal. A judgment of dismissal should be granted when, viewing the evidence in the light most favorable to the State, the evidence is insufficient to establish a prima facie case of the charged offense. M.F. v. State, 35 So.3d 998, 1000 (Fla. 2d DCA 2010). In cases involving circumstantial evidence, the State must also present evidence that is inconsistent with the defendant’s reasonable hypothesis of innocence. Id.

Section 316.027(l)(a), Florida Statutes (2010), proscribes the crime of leaving the scene of a crash involving personal injury or death. In order to meet the intent requirement, the State must establish that the driver “either knew of the resulting injury or death or reasonably should have known from the nature of the accident.” State v. Mancuso, 652 So.2d 370, 372 (Fla.1995).

The State argues that the following evidence established that K.W. should have known that the crash involved injury: (1) K.W. was the driver of a vehicle that was involved in a crash on 1-275, (2) K.W. failed to stop at the scene, (3) the impact of the crash flipped Williamson’s car over, (4) Williamson sustained injuries, and (5) K.W. returned to the scene shortly thereafter. The problem with the State’s evidence is that the State never established how the three vehicles impacted to cause Williamson’s vehicle to roll over. And, while the nature of an impact could establish that a defendant should have known the crash resulted in injury, see Williams v. State, 732 So.2d 431, 432 (Fla. 2d DCA 1999), there is simply not enough evidence in the record establishing that K.W. was involved in the impact that caused Williamson’s vehicle to roll over or that she was aware of what happened to Williamson’s vehicle.

K.W. argues that based on the evidence, it seems more likely that K.W.’s car was in a collision with the third car and the third car caused the rollover. In that scenario, K.W. may have continued driving down the interstate without knowledge of the second impact that caused Williamson’s car to roll over. Without evidence regarding how the three vehicles impacted to cause the rollover, a jury could not determine from the nature of the impact that K.W. was aware that the crash caused injury. Compare Williams, 732 So.2d at 432 (holding that evidence was sufficient to establish that the defendant who collided head-on with another car should have known of the victim’s injury “from the speed of the cars, the extent of the damage to the vehicles, and the injury to his passenger”). Because the State did not produce other evidence establishing what K.W. knew or reasonably should have known regarding Williamson’s personal injuries, K.W. was entitled to a judgment of dismissal.

Reversed.

LaROSE and MORRIS, JJ., Concur.


author: JACOBUS, J.

text:
    Lori ROBERTSON, Appellant, v. John Baron ROBERTSON, Appellee.
    No. 5D09-4060.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.

      Melanie M. Demps of McMichen, Cinami & Demps, PLLC, Orlando, for Appellant.
    Cynthia L. Greene of West, Green & Associates, P.A., Orlando, and Law Offices of Greene, Smith & Associates, P.A., Miami, for Appellee.
   JACOBUS, J.

The appellant, Lori Robertson (Former Wife), appeals from the final judgment of dissolution of marriage. The Former Wife raises five issues on appeal. We find four of her arguments are without merit. However, one issue requires remand for further proceedings.

The parties were married in June of 1997. Approximately ten days prior to the wedding, John Robertson (Former Husband) registered a domain name in his name in order to develop a website. After the parties were married, the Former Husband continued to work on his website, and it became the business from which the family derived the majority of its income. At the time of the breakup of the marriage, the website was grossing substantial sums of money.

The trial court correctly found that the domain name and the website business were the nonmarital property of the Former Husband because the domain name had been registered and website development had begun prior to the marriage. See § 61.075(6)(b)l., Fla. Stat. (“Assets acquired and liabilities incurred by either party prior to the marriage” are nonmarital.). However, it was the Former Husband’s efforts during the marriage that enhanced the value of the website business. As a result, the Former Wife is entitled to have the enhanced value of the business considered as part of the equitable distribution. See § 61.075(6)(a)l.b., Fla. Stat. (“The enhancement in value and appreciation of nonmarital assets resulting ... from the efforts of either party during the marriage” are marital assets.); see also Gill v. Gill, 632 So.2d 226, 227 (Fla. 2d DCA 1994) (noting that the enhancement in value of a nonmarital business is a marital asset where such enhancement is the result of the efforts of either party during the marriage). Since the Former Wife is the one asserting her entitlement to the enhanced value of the website business, she has the burden of proving that value. Pereboom v. Pereboom, 959 So.2d 1205 (Fla. 4th DCA 2007) (finding that the party asserting entitlement to the enhancement in value of a nonmarital asset has the burden of proof).

On the day before trial was to begin, the Former Wife’s attorney filed a motion to continue the trial advising the court that the Former Wife had difficulty retaining an expert to valúate the enhanced value of the website business. She had just retained an expert that was willing to provide an opinion as to the value of the business and receive a fee at a later time. The expert resided out-of-state and was unavailable on the day of trial. The trial court denied the motion to continue. The Former Wife’s attorney then moved that the expert be permitted to testify as a rebuttal witness by telephone. Again, the trial court denied the motion and the matter proceeded to trial. On the evidence presented, the court found that the Former Wife had failed to meet her burden in demonstrating the enhanced value of the website business during the marriage and it was not considered in the equitable distribution scheme.

The court’s denial of the motion to continue placed a manifest injustice on the Former Wife. The primary asset of value in the marital estate was the enhanced value of the website. The court should have considered the predicament in which the Former Wife found herself on the day of trial and accommodated her in some manner, either by continuing the case or by permitting the testimony of the expert be taken at some future time and submitted to the court for consideration. By denying the continuance, the court foreclosed the Former Wife’s ability to have a substantial asset considered in the equitable distribution scheme.

The facts of this case are similar to those found in Fleming v. Fleming, 710 So.2d 601, 603-04 (Fla. 4th DCA 1998), in which the court found that the trial court abused its discretion in denying a motion to continue when a prior attorney for the former wife failed to properly prepare financial information relating to the former husband’s business, which he claimed was unprofitable. Further, our review of the record reveals that the Former Wife established all “four factors” necessary to secure a continuance or some accommodation due to witness unavailability in this case. See State v. Humphreys, 867 So.2d 596, 598 (Fla. 2d DCA 2004). Accordingly, the trial court abused its discretion in the denying the Former Wife’s motion to continue.

The matter is reversed and remanded to the trial court to permit the Former Wife to present testimony as to the enhanced value of the website business during the marriage and to revisit the equitable distribution in this case based upon that testimony.

REVERSED and REMANDED with instructions.

GRIFFIN and EVANDER, JJ., concur.


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. Samantha CONVERSE, Appellee.
    No. 5D10-2615.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the trial court’s order granting defendant Samantha Converse’s motion to dismiss a charge of aggravated battery by a detained person on double jeopardy grounds. Determining that Converse’s motion to dismiss was legally insufficient, we reverse.

While in prison, Converse threw hot coffee in another inmate’s face, causing third-degree burns. As a result of the incident, the Department of Corrections (DOC) placed Converse in disciplinary confinement and referred her to close management. Meanwhile, the State charged Converse with committing the crime of aggravated battery by a detained person. She filed a motion to dismiss the charge, arguing that her prosecution violated double jeopardy because DOC had already punished her for the incident. The trial court granted the motion and dismissed the charge. The State timely appealed.

The trial court erred in granting the motion to dismiss, because Converse failed to demonstrate that her administrative discipline was criminal under the controlling statute or rule or that the statutory scheme was so punitive as to transform the discipline into a criminal penalty.

In Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), the United States Supreme Court explained the proper analysis of this type of double jeopardy question:

The Double Jeopardy Clause provides that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, “ ‘in common parlance,’ ” be described as punishment. United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 387, 87 L.Ed. 443 (1943) (quoting Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852)). The Clause protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); see also Hess, supra, at 548-549, 63 S.Ct. at 386-387 (“Only” “criminal punishment” “subjects] the defendant to ‘jeopardy’ within the constitutional meaning”); Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) (“In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution”) ....
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering, supra, at 399, 58 S.Ct. at 633. A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” [United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980) ]. Even in those cases where the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,” id., at 248-249,100 S.Ct. at 2641, as to “transfor[m] what was clearly intended as a civil remedy into a criminal penalty,” Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956). In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), provide useful guideposts, including: (1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”; (4) “whether its operation will promote the traditional aims of punishment-retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” It is important to note, however, that “these factors must be considered in relation to the statute on its face,” id., at 169, 83 S.Ct. at 568, and “only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, at 249, 100 S.Ct. at 2641-2642 (internal quotation marks omitted).

Id. at 98-100, 118 S.Ct. 488. Accordingly, under Hudson, the trial court was required to apply a two-step analysis to determine whether the statute or regulation under which Converse was disciplined was, on its face, civil or criminal. The Supreme Court later explained a reason for the facial nature of this analysis:

In Hudson, ... this Court expressly disapproved of evaluating the civil nature of an Act by reference to the effect that Act has on a single individual. Instead, courts must evaluate the question by reference to a variety of factors considered in relation to the statute on its face ....
... [A]n “as-applied” analysis [of the Act’s effect on a single individual] would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme’s validity under the Double . Jeopardy ... Clause[ ].... [Confinement is not a fixed event.... [I]t extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute.

Seling v. Young, 531 U.S. 250, 262-63, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001) (quotation marks and citations omitted). See also United States v. Mayes, 158 F.3d 1215 (11th Cir.1998) (analyzing prison-discipline double jeopardy argument under Hudson).

Here, the statute or regulation under which Converse was disciplined was not provided to the trial court; therefore, the motion to dismiss was insufficiently pled. Accordingly, we reverse the trial court’s dismissal order.

REVERSED.

ORFINGER, C.J., and GRIFFIN, J., concur.

      . §§ 784.082(1), .045, Fla. Stat. (2008).

      . The State cites Larkin v. State, 558 So.2d 486 (Fla. 5th DCA 1990), in seeking a reversal of the trial court's order. Larkin held that "the double jeopardy provisions of the Florida and Federal Constitutions do not apply to a judicial proceeding following an administrative proceeding.” Id. (footnotes omitted). However, Larkin's holding that administrative sanctions are always civil is not controlling, as it predates Hudson and cannot be reconciled with Hudson’s analytical framework.


author: RUDISILL, M.J., Associate Judge.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant, v. Tony LIPPI, Appellee.
    No. 5D10-946.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.

      Suzanne B. Hill and Genny A. Castella-nos of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellant.
    Richard G. Rumrell and Lindsey C. Brock, III, of Rumrell, Costabel, Warring-ton & Brock, LLP, Jacksonville, and Mark Hicks, Dinah Stein and Shannon Kain of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellee.
   RUDISILL, M.J., Associate Judge.

Deutsche Bank National Trust Company (“Deutsche Bank”), as Trustee for GSAMP 2006-FMI (“GSAMP”), appeals from the final order dismissing its second amended complaint with prejudice and striking its pleadings. Deutsche Bank argues the trial court’s actions were an abuse of discretion because Deutsche Bank had standing to bring this action and dismissal with prejudice was too severe a sanction under the circumstances of this case. We have considered all of the arguments raised on appeal; however, only two merit discussion. We agree that the lower court erred below and, therefore, reverse and remand for further proceedings.

This case originates from a residential mortgage foreclosure action. In February 2006, Tony Lippi (“Lippi”) executed a mortgage and mortgage promissory note in favor of Fremont Investment and Loan (“Fremont”) in the principal amount of $247,200. While Fremont was the original lender and holder of the note, Mortgage Electronic Registration System, Inc. (“MERS”) was the mortgagee. In August 2007, Lippi defaulted on the note after Deutsche Bank purportedly obtained an assignment from MERS.

As a result of the default, and pursuant to the terms of the note and mortgage, Deutsche Bank accelerated all sums due and owing. When Lippi failed to make payment, Deutsche Bank filed suit on January 18, 2008, against him seeking mortgage foreclosure. Copies of the mortgage and note, in addition to other documents, were attached to the initial complaint and identified Fremont as the lender. The complaint alleged Deutsche Bank was the holder of the note and mortgage and that Lippi was in default because he failed to make a required installment payment.

Lippi subsequently moved to dismiss the complaint, arguing Deutsche Bank lacked standing to bring this action. The trial court granted the motion and gave Deutsche Bank 15 days from the date of the Order (July 3, 2008) to amend the complaint.

In early August 2008, Deutsche Bank filed an amended complaint, a copy of the assignment, the note, and the mortgage specifically alleging that Deutsche Bank owned the note and mortgage on or before December 31, 2007. Thereafter, Deutsche Bank filed the original mortgage and the original note, which included a blank in-dorsement from the original lender, Fremont. The indorsement read as follows: “Pay to the order of _ without recourse.” It was executed by the Vice President of Fremont. The note identifies Fremont as the lender and identifies the mortgage that is dated the same date as the note.

Lippi moved to dismiss the amended complaint with prejudice because it was not timely filed, Deutsche Bank was not the actual owner of the note or the real party in interest, and the assignment was invalid because it was executed after the lawsuit was filed and the assignor was not MERS as Nominee for Fremont. The trial court granted Lippi’s motion and dismissed the amended complaint. It once again gave Deutsche Bank 15 days to amend the complaint. In a separate order, the court required the parties to attend mediation with a representative who had actual authority to settle the case.

Deutsche Bank timely filed a second amended complaint which alleged that it “is now the holder of the Mortgage Note and Mortgage and/or is entitled to enforce the Mortgage Note and Mortgage,” and it attached a copy of the note, mortgage and assignment. The new complaint alleged that the note and mortgage are in default and the full amount owed under the note and mortgage is now due.

Lippi subsequently filed a third motion to dismiss with prejudice. He also requested the court sanction Deutsche Bank for its behavior during the case. The trial court granted Lippi’s motion to dismiss with prejudice. It concluded Deutsche Bank and its counsel willfully violated its orders and sanctions were appropriate. The court also granted Lippi’s amended motion to dismiss the pleadings of Deutsche Bank as a sanction under Ham v. Dunmire, 891 So.2d 492 (Fla.2004). Therefore, the court dismissed Deutsche Bank’s second amended complaint with prejudice, struck Deutsche Bank’s pleadings, and entered a judgment in favor of Lippi.

An order dismissing a complaint with prejudice is reviewed de novo. Poole v. City of Port Orange, 33 So.3d 739, 740 (Fla. 5th DCA 2010). “In determining whether a complaint properly states a cause of action upon which relief can be granted, a court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pled allegations.” Id. The allegations, taken as true, “are then reviewed in light of the applicable substantive law” to determine whether standing exists. Blue Supply Corp. v. Novos Electro Mech, Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008) (quoting Peeler v. Indep. Life & Accident Ins. Co., 206 So.2d 34, 36 (Fla. 3d DCA 1967)). The trial court may not speculate as to whether the allegations are in fact true or whether the plaintiff has the ability to prove them. Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204, 1206 (Fla. 5th DCA 2003) (quoting Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001)). “A motion to dismiss is not a motion for summary judgment and a trial court” may not rely upon depositions, affidavits, or other forms of evidence or speculation as to whether the allegations in the complaint “will ultimately be provable.” Solorzano v. First Union Mortg. Corp., 896 So.2d 847, 850 (Fla. 4th DCA 2005).

On appeal, Deutsche Bank claims it had standing to bring this action because it is the holder of the note and mortgage. To establish standing, a party must “demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly.” Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006). The party that holds the note and mortgage in question has standing to bring and maintain a foreclosure action. Philogene v. ABN Ambro Mortg. Group Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006). Additionally, “the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder.” Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618, 622 (Fla. 5th DCA 2010). Therefore, “[t]he party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010). Since the lien follows the debt, Florida does not require a plaintiff to attach a written or recorded assignment of the mortgage in order to pursue a foreclosure action. Chem. Residential Mortg. v. Rector, 742 So.2d 300, 300-01 (Fla. 1st DCA 1998).

Deutsche Bank’s second amended complaint alleged it was the holder of the note and mortgage. The original note contains an indorsement, which reads: “Pay to the order of_without recourse.” Below that, there is the signature of the Vice President of Fremont. The signature of the Vice President as an agent for Fremont was an effective signature under sections 673.4011(2)(b) and 673.4021, Florida Statutes. See Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). The indorsement is a blank indorsement since it does not identify a specific person to whom the note is payable. See id. Pursuant to section 673.2051(2), Florida Statutes, the note was payable to the bearer and could be transferred simply by possession. See Riggs, 36 So.3d at 933. The note in question is payable to Fremont, it is indorsed in blank, and Deutsche Bank possessed the original note and filed it with the lower court. Therefore, its standing is established because it is the note holder, regardless of any recorded assignments. See Harvey v. Deutsche Bank Nat’l Trust Co., 69 So.3d 300, 304 (Fla. 4th DCA 2011).

Deutsche Bank also argues the lower court erred when it dismissed its second amended complaint as a sanction pursuant to Ham v. Dunmire, 891 So.2d 492 (Fla.2004). An order dismissing a case with prejudice as a sanction will be upheld absent an abuse of discretion. Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002). If a trial court dismisses a case with prejudice without evidence of extensive prejudice to the other side or proof that the party willfully failed to comply with court orders, it is considered an abuse of discretion. Clark v. Lake City Police Dep’t, 723 So.2d 901, 903 (Fla. 1st DCA 1999).

Dismissing a case with prejudice is the ultimate sanction and should only be used in “those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). When deciding whether to sanction a party by dismissing its case with prejudice, a court should consider the following factors:

1) whether the attorneys’ disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Id. After considering these factors, “if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id. Sanctions short of dismissing a case with prejudice are appropriate when the errors are made by the attorney and not the client. Am. Express Co. v. Hickey, 869 So.2d 694, 695 (Fla. 5th DCA 2004). Although no “magic words” are required when a court dismisses a ease with prejudice, the court must find the conduct leading to the order was willful or constituted a deliberate disregard of the court’s directives. Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990). Additionally, the lower court’s failure to consider the Kozel factors when deciding whether to dismiss a case with prejudice, by itself, is sufficient reason to remand the matter for application of the proper standard. Ham, 891 So.2d at 500.

The lower court dismissed the complaint with prejudice because of Deutsche Bank’s lack of standing and its failure to state a cause of action. For the reasons previously discussed, any sanction based on these findings was improper.

A review of the record shows Deutsche Bank violated some of the lower court’s orders. In deciding to sanction Deutsche Bank by dismissing its case, the lower court found Deutsche Bank’s actions were willful violations, both Deutsche Bank and its attorney disobeyed orders, and their actions hindered the administration of justice. However, the lower court did not consider the remaining Kozel factors. Also, there is no evidence indicating Deutsche Bank was aware of its attorney’s actions or that it participated in any violations of court orders. Likewise, nothing in the record suggests Deutsche Bank’s actions caused a delay, which prejudiced Lippi. Rather, the delays resulted from the lower court improperly dismissing Deutsche Bank’s amended complaints due to lack of standing and for failure to state a cause of action. Regardless of the source of the delays, the record is silent as to what, if any, prejudice Lippi may have suffered. Finally, there is no record evidence that the lower court considered whether Deutsche Bank’s attorney offered a reasonable justification for any noncompliance.

Upon review of the record and the Kozel factors, it was error for the lower court to dismiss Deutsche Bank’s foreclosure action with prejudice as a sanction. Dismissal with prejudice is unwarranted in this case and the lower court should have considered less severe sanctions if it wished to punish Deutsche Bank. See Ham, 891 So.2d at 499; Am. Express Co., 869 So.2d 694 (dismissing with prejudice too harsh a sanction, even though attorney missed deadlines and did not appear at scheduled hearing).

For these reasons, we REVERSE the order dismissing Deutsche Bank’s second amended complaint with prejudice and dismissing Deutsche Bank’s case with prejudice as a sanction and REMAND for further proceedings.

ORFINGER, C.J. and COHEN, J., concur.