author:
PER CURIAM.
      BENTON, J.,

text:
    Jesus Rangel BERNAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-6292.
    District Court of Appeal of Florida, First District.
    May 7, 2009.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant, and Jesus Ran-gel Bernal, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

DAVIS and PADOVANO, JJ., concur; BENTON, J., concurs with opinion.

BENTON, J.,

concurring.

This case presents at least an arguable issue about whether appellant’s resentenc-ing comported with the prohibitions against double jeopardy. See Fasenmyer v. State, 457 So.2d 1361, 1365-66 (Fla.1984) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Troupe v. Rowe, 283 So.2d 857 (Fla.1973)). But this is another case in which “the absence of any objection at the time of sentencing, followed by the failure to file a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b) before the initial brief was filed, precludes correction even of ‘fundamental’ sentencing errors on direct appeal.” Starkes v. State, 10 So.3d 1109, 1109, 2009 WL 981327 (Fla. 1st DCA April 14, 2009) (Benton, J., concurring). See Colon v. State, 869 So.2d 1290, 1290 (Fla. 4th DCA 2004) (affirming convictions and sentences because “unpreserved sentencing error cannot be corrected in an Anders [v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ] case”).

Today’s affirmance is, however, without prejudice to appellant’s right to seek relief collaterally, see Wilson v. State, 898 So.2d 191, 193 (Fla. 1st DCA 2005); Colon, 869 So.2d at 1290, although he may not have the right to be assisted by counsel in doing so. Cf. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (establishing an indigent defendant’s right to court-appointed counsel on direct appeal). Compare Florence v. State, 754 So.2d 175, 176 (Fla. 1st DCA 2000), ivith Toliver v. State, 737 So.2d 1142, 1143-44 (Fla. 1st DCA 1999). See also Hicks v. State, 1 So.3d 1233, 1234 (Fla. 1st DCA 2009) (holding “that petitioner’s appellate counsel was ineffective for failing to raise these issues on appeal and preserve them by filing a rule 3.800(b) motion”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James Lee BULLARD, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-4983.
    District Court of Appeal of Florida, First District.
    May 7, 2009.
    James Lee Bullard, pro se, Appellant.
    Kathleen Von Hoene, General Counsel, Florida Department of Corrections, Tallahassee; Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s order dismissing his civil complaint. The trial court entered two conflicting orders. On August 17, 2006, in conjunction with the circuit court clerk’s Certificate of Indigence, the trial court ordered the Department of Corrections to place a lien on Appellant’s trust account for the full amount of court costs and fees pursuant to section 57.085(5), Florida Statutes. On August 30, 2006, however, the trial court issued an order dismissing Appellant’s civil case for failure to either pay the filing fee or provide the information requested in order to make a determination of indigen-cy. We therefore vacate the trial court’s order dismissing Appellant’s case.

VACATED.

KAHN, THOMAS, and ROBERTS, JJ., concur.


author: VILLANTI, Judge.

text:
    In the Interest of D.J., a child. C.J., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D08-793.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.

      Ingrid Anderson, Clearwater, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee.
    Jennifer S. Paullin, Orlando, for Appel-lee Guardian ad Litem Program.
   VILLANTI, Judge.

C.J., the Mother, appeals the trial court’s order adjudicating her daughter, D.J., dependent. While the Department’s actions in this case clearly violated the spirit, as well as the letter, of the dependency statute, we nevertheless are compelled to affirm the order declaring D.J. dependent because the trial court’s ruling is supported by competent, substantial evidence.

The Mother’s first contact with the Department came about when her own mother beat and abused her. The Mother had also been sexually abused by several men. The Mother was initially placed under the protection and care of the Department as a “child victim,” and she was ultimately placed with her maternal grandmother, apparently as a long-term relative placement. During the two years that she lived with her grandmother before becoming pregnant, the Mother ran away several times and refused to attend the sex abuse counseling recommended for her by the Department. She also engaged in criminal activity, obtaining juvenile convictions for battery and a charge as a principal to armed robbery.

According to the Mother, the armed robbery charge arose when she was riding in a car driven by her then-boyfriend. He stopped at a convenience store where he saw some people he knew, got out of the car, and robbed several individuals with a handgun. He then returned to the car and drove off. The Mother remained in the car the entire time, and she denied knowing that the robbery was going to occur. She was charged as a principal, but the State was offering her a reduced charge and a probationary sentence if she testified against her boyfriend. The Mother testified that after this happened, she “saw the light” and began to change her behavior. She returned to school full time and no longer, ran away from home. She did, however, become pregnant. The Mother testified that, due to her new view of life, she was committed to raising her child in a healthy and loving environment.

The Mother and the Department both agree that the Mother’s case worker (assigned to her as a “child victim”) suggested to the Mother while she was pregnant that she take a parenting class. When the Mother was seven months’ pregnant, the case worker arranged for her to take a parenting class through the public school system; however, the Mother had to ride a public school bus full of other children to the school where the class was, and the bus ride took an hour each way. The Mother stopped attending the class because she was physically uncomfortable sitting on the bus for that long a period and because she was concerned about the long ride since she was considered a high-risk pregnancy. She also testified that she did not believe that she needed a class on infant care because she had helped raise her younger siblings and she had done a lot of babysitting. According to the Mother, when she stopped attending the parenting class, her case worker told her that she needed to complete the class or the Department would take her baby away when it was born. The Department does not deny that its case worker made this statement. Immediately after the Mother stopped taking the class, the Department issued a “baby watch” to all the local hospitals so that the Department would be notified when the Mother gave birth.

D.J., a healthy baby girl, was born on October 2, 2006. True to its word, the Department sheltered D.J. on October 4, 2006, and filed a shelter petition on October 5, 2006. In the shelter petition, the Department alleged that D.J. was in “imminent danger of illness or injury as a result of abuse, neglect, or abandonment.” The Department’s affidavit in support of its shelter petition alleged that the Mother had a psychiatric history and that she was noncompliant with her treatment. The Department also alleged that the Mother had a history of running away, some mental retardation, and a possible history of drug use. The Department also cited the pending armed robbery charge. The Department’s shelter petition did not indicate that its sole basis for its claim that the Mother had a “psychiatric .history” was her counsel’s request for a competency evaluation in her pending criminal case. The petition also did not indicate that the Mother’s history of running away had occurred more than two years prior to D.J.’s birth and that the alleged prior drug use was a single positive urine test for marijuana two years earlier. Based on the Department’s allegations, the trial court sheltered D.J.

Shortly after D.J. was born and while she was in foster care, D.J. developed stri-dor, which is an asthma-like disorder that generally results from a weakened trachea and/or esophagus, and gastroesophageal reflux. The combination of the two disorders resulted in D.J. having to be fed via a nasogastric feeding tube, which is a tube that runs up the nose, down the throat, and into the stomach. D.J. also developed a heart arrhythmia and sleep apnea, both of which required her to be hooked to a monitor. D.J. was transferred to a medical foster home in Lake Wales while the Mother remained living in north Tampa.

On October 25, 2006, the Department filed its petition for adjudication of dependency. In count two , the Department alleged that D.J. “is at substantial risk of imminent harm from the mother” because the Mother had refused to attend sex abuse counseling, had engaged in criminal conduct, and had a history of running away and using drugs.

After D.J. was sheltered, the Department obtained repeated continuances of the dependency hearing. This occurred despite the provisions of sections 39.402(13) and 39.402(14)(f), Florida Statutes (2006), which provide that a child may not be held in shelter status under a shelter order for more than 60 days without an adjudication of dependency and that continuances or extensions of time may not exceed a total of 60 days. D.J. was ultimately held under a shelter order for more than seven months, rather than the maximum four months provided for by section 39.402.

In addition to these long delays, the record also shows that while D.J. was sheltered, the Department actively worked at cross-purposes with the Mother. For example, many of D.J.’s medical appointments were in Lakeland because the foster parents lived in Lake Wales. The Department was aware that the Mother lived in north Tampa and relied on public transportation. There was also evidence that the Department often failed to tell the Mother about the few medical appointments scheduled in Hillsborough County in time for the Mother to make transportation arrangements. However, the Department repeatedly faulted the Mother for failing to attend D.J.’s medical appointments and refused to consider reunification on the basis of the Mother’s failure to attend these appointments.

Similarly, the Department told the Mother that it could not recommend that she be reunited with D.J. because the Mother’s mother had moved back into the Mother’s grandmother’s home where the Mother was living and the Mother’s mother had a drug problem. However, when the Mother moved out of her grandmother’s home and sought independent living benefits for herself and her child, the Department told the Mother that she had to return to her grandmother’s home because that was her approved placement.

Further, the Department gave the Mother, who lived in north Tampa, a referral to a parenting program in Riverview. When the Mother found an approved parenting program provided by the county school system closer to her home, the Department refused to approve that program for the Mother, contending that it did not focus enough on infant care. It is not clear from the record whether the school system parenting program that the Department refused to approve is the same one that it attempted to require the Mother to attend when she was pregnant.

Finally, when the Mother asked the Department for training on how to deal with D.J.’s medical issues, the Department told her that the foster mother would have to train her. When the Mother asked the foster mother to teach her, the foster mother refused to do so until the Department indicated its intent to reunite D.J. with the Mother. However, the Department refused to consider reunification because the Mother was not trained to deal with D.J.’s medical issues. Each of these actions by the Department, which the Department did not dispute at the hearing, establishes that the Department was in an adversarial relationship with the Mother, in violation of section 39.001(l)(b)(2), which states that the Department “should engage families in constructive, supportive, and nonadversarial relationships.”

In April 2007, after denying the Department’s request for yet another continuance and after considering all of the evidence presented at the adjudicatory hearing, the trial court adjudicated D.J. dependent based on its finding that D.J. was “at substantial risk of imminent medical neglect due to the mother’s lack of current medical training, the mother’s home being inadequately equipt (sic) to meet the needs of the child, and the immaturity in decision making skills that the mother has exhibited in the past.” However, the trial court also ordered the Department to establish “a very aggressive case plan to ... get this child back to this home.” The court specifically noted that it was not concerned about the Mother’s ability to interact appropriately with D.J., but it was concerned with “the medical well-being of the child.” The court told the Department that it wanted to reunite the Mother with D.J. in four to six weeks. The court also ordered the Department to give the Mother whatever referrals were necessary “immediately.” The Mother now seeks review of the order adjudicating D.J. dependent.

Despite the fact that many of the Mother’s problems were the direct result of the Department’s adversarial and obstructionist tactics, we cannot say that the trial court abused its discretion in adjudicating D.J. dependent. See In the Interest of L.C., 947 So.2d 1240, 1243 (Fla. 2d DCA 2007) (noting that an appellate court reviews a dependency adjudication for abuse of discretion). “An adjudication of dependency will be upheld if the court applied the correct law and its factual rulings are supported by competent substantial evidence.” Id. (citing R.F. v. Dep’t of Children & Families (In re M.F.), 770 So.2d 1189, 1192 (Fla.2000)).

In this case, the question for the trial court was whether D.J. was “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” § 39.01 (14)(f) (defining what constitutes a dependent child). “ ‘Neglect’ occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment....” § 39.01(43). ‘“Necessary medical treatment’ means care which is necessary within a reasonable degree of medical certainty to prevent the deterioration of a child’s condition or to alleviate immediate pain of a child.” § 39.01(42). Here, competent, substantial evidence presented at the adjudicatory hearing established that the Mother did not have, at that time, either the training or equipment needed to provide D.J. with the medical treatment necessary to manage her health issues. Because the purpose of an adjudication of dependency is “the protection of the child and not the punishment of the [parent],” § 39.501(2), the trial court did not abuse its discretion by adjudicating D.J. dependent for her own protection until such time as the Mother could receive the training she needed.

In this appeal, the Mother contends that the dependency adjudication was improper because the Department did not prove that D.J. faced any “imminent” harm. However, given the testimony about D.J.’s feedings through the nasogastric tube, her need for the apnea and cardiac monitors, and the Mother’s undisputed lack of training in addressing these medical needs, the immediate return of D.J. to the Mother would have posed a substantial risk of imminent harm to D.J. Further, the Department did establish a nexus between the Mother’s lack of medical training and the prospective harm to D.J. if her medical needs were improperly or inadequately addressed. Therefore, contrary to the Mother’s argument, the trial court’s finding that there was a substantial risk of imminent harm was supported by competent, substantial evidence.

The Mother also contends that the trial court’s reliance on an imminent threat of medical neglect to support the dependency adjudication violated her due process rights because the Department did not allege medical neglect in its petition. On the facts here, we disagree.

Due process requires that the allegations of a dependency petition be adequate to inform the parent of the nature of the Department’s claims so that the parent can prepare a defense. See Brown v. Dep’t of Health & Rehabilitative Sens., 582 So.2d 113, 114 (Fla. 3d DCA 1991). Thus, as a general proposition, it is error for the trial court to declare a child dependent based on grounds not alleged in the Department’s petition. See, e.g., K.S. v. Dep’t of Children & Families, 940 So.2d 577, 578 (Fla. 5th DCA 2006); R.S. v. Dep’t of Children & Families, 872 So.2d 412, 413 (Fla. 4th DCA 2004). However, when the issue is tried by implied consent, these due process concerns are alleviated. See, e.g., W.R. v. Dep’t of Children & Families, 961 So.2d 1131, 1132 (Fla. 4th DCA 2007); K.S., 940 So.2d at 578. Implied consent arises when arguments and evidence are presented on the issue without objection by the opposing party. W.S., 961 So.2d at 1132; K.S., 940 So.2d at 578.

For example, in W.S., the court held that the issue of the father’s breach of his case plan was tried by implied consent when “evidence of compliance with the case plan was the central issue at trial without objection.” 961 So.2d at 1132. Likewise in K.S., the court found that the disputed issue was tried by implied consent when “extensive evidence was introduced during the three-day hearing implicating section 39.806(l)(c), ... the attorneys discussed this ground in closing,” and “KS.’s counsel did not object.” 940 So.2d at 578. In contrast, in R.S., the court held that the disputed issue was not tried by implied consent when the disputed ground for termination was not alleged in the petition, was not mentioned in opening statements, and was not referred to at all until the trial court entered its ruling. 872 So.2d at 413.

Here, the record shows that the Department presented extensive evidence concerning the Mother’s lack of training vis-a-vis D.J.’s medical needs with no objection by the Mother. The Mother also presented evidence on this issue, specifically introducing evidence of her efforts to obtain such training. Contrary to the Mother’s representations on appeal, both the Mother and the Department, in their closing arguments, addressed the issue of whether the Mother could adequately address D.J.’s medical needs if reunification was ordered. Because extensive evidence was presented concerning the Mother’s ability to care for D.J.’s medical needs without objection and because the parties argued this exact issue in closing arguments, the medical neglect issue was tried by implied consent, and the Mother’s due process rights were therefore not violated.

Finally, the Mother points out that the Department did not introduce any evidence that she had previously neglected any of D.J.’s medical needs, nor did the Department present any evidence that the Mother would intentionally neglect D.J.’s medical needs upon reunification. While this is true, the trial court’s finding that the Mother was simply not trained and equipped to handle D.J.’s medical needs at the time of the hearing was sufficient to establish prospective medical neglect — not due to any intentionally neglectful conduct on the part of the Mother, but simply due to her lack of training. As justifiably troubled as the trial court was by the Department’s handling of this case, it did not lose track of the paramount goal of chapter 39 proceedings: “[t]o provide for the care, safety, and protection of children.” § 39.001(l)(a). Under these circumstances, the trial court’s decision to adjudicate D.J. dependent while the Mother received the necessary training in how to care for D.J.’s medical needs was not an abuse of discretion.

Sadly, the Department’s handling of this case distorted the manner in which the goals of chapter 39 are to be pursued: through “constructive, supportive, and nonadversarial relationships,” § 39.001(l)(b)(2), that “intrude as little as possible into the life of the family,” § 39.001(l)(b)(3). We are also concerned by the Department’s apparent disregard of the requirement that dependency actions be expedited in all but the most exceptional circumstances. See § 39.0136. The actions and attitudes displayed by the Department in this case are ones we cannot and do not condone. However, when the court finally considered the case at the dependency hearing, it acted properly in protecting D.J. for the brief time necessary to get the Mother the medical training she needed. Therefore, we affirm the adjudication of dependency.

Affirmed.

NORTHCUTT, C.J., and CRENSHAW, J., Concur.

      . In count one of its petition, the Department alleged prospective neglect based on the Mother’s alleged mental health issues. However, at the close of the Department’s case during the dependency hearing, the trial court dismissed this count due to a lack of evidence. Therefore, the issues raised in count one are not at issue in this appeal.

      . We note that the trial judge who entered the dependency order in this case was not the judge who allowed these repeated continuances in violation of the statutory requirements.


author: WALLACE, Judge.

text:
    Katherine KAAA, Appellant, v. Joseph KAAA, Appellee.
    No. 2D08-276.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.

      Mark A. Neumaier, Tampa, for Appellant.
    Jeanie E. Hanna and Ellen E. Ware of Ware Law Group, P.A., Tampa, for Appel-lee.
   WALLACE, Judge.

Katherine Kaaa (the Wife) raises a single issue in her appeal from the final judgment that dissolved her marriage to Joseph Kaaa (the Husband). She challenges the trial court’s denial of her claim to a portion of the passive appreciation in the Husband’s nonmarital real property, even though the mortgage debt encumbering the property was paid with marital funds throughout the course of the parties’ twenty-seven-year marriage. Because the trial court correctly applied this court’s decision in Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003), in disposing of the Wife’s claim, we affirm the final judgment in all respects. However, we certify that our decision is in direct conflict with the First District’s decision in Stevens v. Stevens, 651 So.2d 1306 (Fla. 1st DCA 1995).

I. THE FACTUAL BACKGROUND

The parties were married in 1980. They had four children. At the time of the final hearing, three of the children had reached the age of majority. The parties continued to occupy the same residence through the date of the final hearing. The trial court entered the final judgment of dissolution of marriage on December 18, 2007.

In October 1979, approximately six months before the parties were married, the Husband purchased a residence in Riv-erview, which was located on a one-and-one-quarter-acre lot. This residence, referred to as “the Riverview property,” became the parties’ marital home. The Husband took title to the property in his name alone. Although the parties refinanced the Riverview property several times, the Husband never transferred any interest in the property to the Wife.

The Husband purchased the Riverview property for approximately $36,500. The down payment required at the closing was $2000. The Husband financed the balance of the purchase price with a mortgage on the property. During the course of the marriage, the parties paid all of the mortgage’payments, insurance premiums, taxes, and maintenance expenses of the Riverview property from marital funds. In addition, the parties used marital funds to improve the residence by closing in a carport. At the final hearing, the parties stipulated that the Riverview property had a current fair market value of $225,000 and was subject to a mortgage with a balance of $12,871.46.

II. THE CIRCUIT COURT’S RULING

The trial court made the following findings of fact concerning the Riverview property:

H. [The Riverview property] was purchased by the Husband prior to the marriage, continues to be titled in the Husband’s name alone, and is, therefore, the Husband’s non-marital property pursuant to Section 61.075(5)(b)[,] Florida Statutes.
I. During the marriage, the balance of the mortgage on the Husband’s home was reduced by $22,279, and an addition was made to the home of 360 square feet, increasing the current value of the home, at $40 per square feet [sic] as credibly testified to by the Wife’s expert ... by $14,400.00.
J. The enhancement of the home as described in Section I hereof, totaling $36,679, was made through the use of marital funds or efforts or both, and is therefore a marital asset subject to equitable distribution pursuant to Section 61.075(5)(a)[,] Florida Statutes.

Based on these findings, the trial court ruled that the Husband was entitled to the exclusive use and ownership of the River-view property. In addition, the trial court ordered the Husband to pay the Wife an equalizing payment of $18,339.50. The equalizing payment represented the Wife’s one-half interest in the paydown on the mortgage and the increase in the value of the property attributable to closing in the carport.

III. DISCUSSION

The trial court correctly decided the issue of the extent of the Wife’s interest in the enhancement of the value of the Riverview property in accordance with this court’s decision in Mitchell. Marital funds enhanced the value of the property by paying down the principal balance of the mortgage and by increasing the size of the residence. These enhancements are marital assets subject to equitable distribution. See § 61.075(5)(a)(2), Fla. Stat. (2006); Mitchell, 841 So.2d at 567. The trial court properly made an equitable distribution to the Wife of a one-half share in the value of these marital assets. However, under Mitchell, the increase in the value of the Riverview property resulting from passive appreciation is the Husband’s nonmarital asset. See 841 So.2d at 567 (“Where, as here, the increase in market value is attributable to ‘inflation or fortuitous market forces,’ the expenditure of marital funds on the nonmarital asset does not transform the appreciated asset into marital property.”) (citing Straley v. Frank, 612 So.2d 610, 612 (Fla. 2d DCA 1992)). Thus the trial court properly declined to award the Wife any portion of the increase in the value of the property resulting from passive appreciation.

In the briefs and at oral argument, the Wife has directed our attention to the First District’s decision in Stevens. We agree with the Wife that the First District takes a different approach than Mitchell relative to the treatment of the passive appreciation of nonmarital real property where the value of the property has been enhanced by marital funds or labor. In Stevens, the First District explained its approach as follows:

Equitable distribution of marital assets should take into account the appreciated value of a non-marital asset caused by the expenditure of marital funds or labor, including the parties’ management, oversight, or contribution to principal, Young v. Young, 606 So.2d 1267, 1270 (Fla. 1st DCA 1992); Massis v. Massis, 551 So.2d 587, 589 (Fla. 1st DCA 1989), as well as an appropriate portion of any appreciation of a non-marital asset caused by the effects of inflation and market conditions, where “some portion of the current value ... must reasonably be classified as a marital asset.” Sanders v. Sanders, 547 So.2d 1014, 1016 (Fla, 1st DCA 1989).
An asset brought by one party to a marriage, which appreciates during the course of the marriage, solely on account of inflation or market conditions, becomes in part a marital asset, if it is encumbered by indebtedness which marital funds service. Each spouse’s income is deemed marital funds. Here the trial court erred in excluding from the equitable distribution plan the entire amount by which the [husband’s non-marital real] property appreciated in value during the marriage, since marital funds were used to make the mortgage payments and pay the taxes. The appreciation, if any, should be allocated between the parties by a “reasonable proration of the appreciated value.” Sanders, 547 So.2d at 1016.
If a separate asset is encumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor. If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage. If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed, § 61.075(5)(a)[ (]2[) ], Fla. Stat. (1993), should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.

651 So.2d at 1307-08 (ellipsis in original); see also Wilson v. Wilson, 992 So.2d 395, 399 (Fla. 1st DCA 2008) (quoting extensively from Stevens to provide guidance to the trial court on a remand for further proceedings).

The Wife argues that the treatment of the passive appreciation of the Riverview property under Mitchell — particularly on the facts shown here — is manifestly unfair to her. She points out that the Husband’s contribution of nonmarital funds to the Riverview property was limited to his relatively small down payment and the minimal reduction in the principal balance of the mortgage during the six-month period between his acquisition of the property and the parties’ marriage. Indeed, marital funds were the source of virtually all of the monies used to service the mortgages on the property and the various expenses associated with it.

Under the First District’s approach in Stevens, the Wife would be entitled to equitable distribution of a share of substantially all of the passive appreciation in the Riverview property during the course of the parties’ twenty-seven-year marriage. However, under Mitchell, the Wife is not entitled to any portion of the considerable passive appreciation in the value of the property. The Wife submits that this result “is neither equitable nor in compliance with the statute.” She asks us to either recede from Mitchell or to certify conflict with Stevens.

This panel is bound by Mitchell. Accordingly, we affirm the final judgment of dissolution of marriage in all respects. However, we do certify that our decision in this case is in direct conflict with Stevens on the issue of the treatment of the passive appreciation of nonmarital real property that is encumbered by an indebtedness serviced by marital funds. See generally Dawn D. Nichols & Sean K. Ahmed, Non-marital Real Estate: Is the Appreciation Marital, Nonmarital, or a Combination of Both?, 81 Fla. B.J. 75 (Oct. 2007) (describing a conflict between Mitchell and the analyses employed by the four other district courts of appeal to the treatment of the appreciation in the value of nonmarital real estate).

Affirmed; conflict certified.

SILBERMAN and LaROSE, JJ., Concur.

      . At the final hearing, the Husband testified that he had paid the $2000 down payment. The Wife’s testimony was in conflict with the Husband’s testimony on this point. She testified that she had contributed $500 from her separate funds toward the down payment. The trial court did not make a finding of fact resolving this conflict in the evidence.


text:
    Willie J. DOTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0245.
    District Court of Appeal of Florida, First District.
    May 11, 2009.
    Willie J. Dotson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on June 5, 2008, in Leon County Circuit Court case number 2007-CF-003088-A, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R. App. P. 9.141(c)(5)(B). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent him on appeal.

BARFIELD, KAHN, and WEBSTER, JJ., concur.


text:
    Niosvel CABRERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-412.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2009.
    Rehearing Denied June 18, 2009.
    Ronald Haber of Ronald Haber, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Peart v. State, 754 So.2d 723 (Fla. 4th DCA 1999).

POLEN, STEVENSON and DAMOORGIAN, JJ., concur.


text:
    Joseph DENNIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5931.
    District Court of Appeal of Florida, First District.
    May 13, 2009.
    Joseph Dennis, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion to correct illegal sentence seeking out-of-state jail credit. However, we do so without prejudice to appellant’s raising this claim in a properly sworn rule 3.850 motion. See Lewis v. State, 926 So.2d 437 (Fla. 1st DCA 2006) (court cannot treat rule 3.800(a) motion as rule 3.850 motion where motion is not properly sworn); Daily v. State, 750 So.2d 37 (Fla. 4th DCA 1999) (affirming denial of 3.800(a) motion seeking jail credit without prejudice to defendant’s filing facially sufficient 3.800(a) motion demonstrating where in the record entitlement to relief can be shown or for defendant to file properly sworn rule 3.850 motion raising the same issue); Petscher v. State, 936 So.2d 639 (Fla. 5th DCA 2006) (if jail credit claim cannot be resolved from face of record without resorting to fact finding, claim must be raised in rule 3.850 motion) (Orfinger, J., concurring).

AFFIRMED.

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


text:
    Victor L. PARKER, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-0949.
    District Court of Appeal of Florida, First District.
    May 13, 2009.
    Victor L. Parker, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Victor L. Parker seeks belated appeal from an order of the circuit court denying his petition for writ of mandamus. Because the proceedings below did not involve imposition of judgment and sentence or denial of a rule 3.800 or 3.850 motion, the remedy of belated appeal is unavailable and the petition must be denied. See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999). Petitioner’s remedy, if any, lies with the circuit court. See Milord v. Fla. Parole Comm’n, 4 So.3d 762 (Fla. 1st DCA 2009)(Browning, J., con- ' curring).

DENIED.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


text:
    Reshawnana D. PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5425.
    District Court of Appeal of Florida, First District.
    May 13, 2009.
    Reshawnana D. Peterson, pro se, Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the postconviction court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The appellant’s motion raises two claims attacking his habitual violent felony offender sentence and multiple claims alleging ineffective assistance of counsel. The ineffective assistance of counsel claims were denied as conclusory but the postconviction court failed to allow the appellant an opportunity to amend the claims pursuant to Spera v. State, 971 So.2d 754, 761 (Fla.2007). We therefore reverse the summary denial of the appellant’s rule 3.850 motion with respect to his ineffective assistance of counsel claims and remand for the postconviction court to allow the appellant the opportunity to amend his facially insufficient claims within a reasonable period of time. We affirm without further discussion the appellant’s claims concerning the validity of his habitual violent felony offender sentence.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Marcus GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6252.
    District Court of Appeal of Florida, First District.
    May 15, 2009.
    Marcus Gordon, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Sweet v. State, 987 So.2d 747 (Fla. 2d DCA 2008); Smith v. State, 951 So.2d 965 (Fla. 1st DCA 2007).

KAHN, THOMAS, and ROBERTS, JJ., concur.


text:
    Bobby J. STARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1625.
    District Court of Appeal of Florida, First District.
    May 15, 2009.
    Bobby J. Starker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Lambrix v. State, 698 So.2d 247 (Fla.1996).

KAHN, THOMAS, and ROBERTS, JJ., concur.


text:
    Dena L. BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1170.
    District Court of Appeal of Florida, First District.
    May 19, 2009.
    Dena L. Bell, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner filed a motion to modify her sentence in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the petitioner’s notice of appeal as a petition for certiorari and deny the petition. See Platt v. State, 890 So.2d 502 (Fla. 1st DCA 2004); Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

DENIED.

WEBSTER, BENTON, and ROBERTS, JJ., concur.


text:
    Joseph GREEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4861.
    District Court of Appeal of Florida, First District.
    May 19, 2009.
    Joseph Green, Jr., pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has filed a rule 3.800(a) motion asserting that his 30-year sentence for a second-degree felony is illegal. The trial court denied the claim on the basis that the appellant raised the identical claim numerous times in the past. However, none of the attachments provided by the trial court refute the appellant’s specific claim raised in the instant motion, or even demonstrate that this claim has previously been addressed on the merits.

We therefore reverse and remand for the trial court to attach record evidence that either establishes that this claim is successive or that conclusively refutes the appellant’s entitlement to relief, or to grant the appellant the relief he seeks. See Byers v. State, 916 So.2d 923 (Fla. 1st DCA2005).

REVERSED AND REMANDED.

DAVIS, BROWNING and THOMAS, JJ., concur.


text:
    Corre WELLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2183.
    District Court of Appeal of Florida, First District.
    May 21, 2009.
    Corre Wells, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


text:
    Corey Lane SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1490.
    District Court of Appeal of Florida, First District.
    May 22, 2009.
    James T. Miller, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Corey Lane Smith appeals his convictions on four counts of lewd and lascivious molestation on a victim under age twelve and asserts two points of alleged fundamental error. We affirm the second point without comment. As to the first point, we find the prosecutor’s statements in closing argument do not rise to the level of fundamental error. See, e.g., State v. Fountain, 930 So.2d 865 (Fla. 2d DCA 2006).

AFFIRMED.

KAHN, DAVIS, and CLARK, JJ., concur.


author: LaROSE, Judge.

text:
    Paul Winslow CORSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2386.
    District Court of Appeal of Florida, Second District.
    May 27, 2009.

      James Marion Moorman, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Paul Winslow Corson, Jr., seeks a new trial on the charge of lewd or lascivious molestation of a child. He argues that the trial court abused its discretion in admitting factually dissimilar and unduly prejudicial collateral crimes evidence. We reverse.

The State charged Mr. Corson with molesting six-year-old A.E. at Mr. Corson’s home. The State filed a notice of intent to use WilliwmH rule evidence of previous child molestation. Under section 90.404(2)(b)(l), Florida Statutes (2004),

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

The State’s notice alleged that Mr. Cor-son had molested N.W. at his home when she was approximately six years old. The alleged molestation occurred about two to three months before the incident with A.E. The State also intended to call as a witness the doctor who examined N.W.

Mr. Corson moved, in limine, to exclude the evidence because its prejudicial effect substantially outweighed its probative value. See § 90.403; McLean v. State, 934 So.2d 1248 (Fla.2006). At the hearing on the motion, the parties stipulated that the trial court could review the police reports, depositions, and other discovery material in making its ruling. The trial court deemed the evidence admissible. At Mr. Corson’s trial, N.W. and the doctor testified at length about the alleged molestation of N.W. The jury convicted Mr. Cor-son.

Mr. Corson concedes that some of the collateral crimes evidence may have been relevant and admissible. However, he argues that the trial court should have excluded the extensive evidence, especially that presented by the doctor, of dissimilar acts and events. We review the trial court’s admission of Williams rule evidence for an abuse of discretion. Kulling v. State, 827 So.2d 311, 313 (Fla. 2d DCA 2002); Macias v. State, 959 So.2d 782, 783 (Fla. 4th DCA 2007).

As we explained in Foreman v. State, 965 So.2d 1171, 1173-74 (Fla. 2d DCA 2007), relevancy is the threshold question of whether testimony proffered under section 90.404(2)(b)(l) is admissible.

[T]he similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence.... First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

Id. at 1174 (quoting McLean, 934 So.2d at 1259). In Foreman, no sufficient nexus existed between a prior touching incident and the charged crimes of capital sexual battery. Id. at 1175. “At best, the touching evidence tended solely to prove ... bad character or propensity....” Id. (citing section 90.404(2)(a)). We must guard . against the “ ‘risk that a conviction will be based on the defendant’s bad character or propensity to commit crimes, rather than on proof he committed the charged offense.’ ” Id. at 1175-76 (quoting Jones v. State, 944 So.2d 533, 536 (Fla. 5th DCA 2006)).

In contrast, in McLean, 934 So.2d at 1253, a lewd molestation case, the trial court found that admission of all the collateral crimes evidence would be unduly prejudicial. Id. at 1263. The supreme court concluded that the trial court did not err in admitting limited portions of the evidence. Id.

Here, Mr. Corson allegedly touched A.E. between her legs with his hand. N.W. testified to a similar incident. N.W. then detailed other alleged offenses that would have constituted capital sexual batteries. The doctor who examined N.W. also testified about possible penile to anal contact. No such crimes were charged as to A.E. Indeed, as to Mr. Corson’s alleged molestation of A.E. there was no physical evidence, there were no witnesses, and there were no incriminating statements. In closing, the State relied on the collateral crimes evidence presented by N.W. and the doctor. The State also stressed N.W.’s credibility in its rebuttal closing argument. The collateral crimes evidence became a focal point of the trial and involved acts more serious than the offenses for which Mr. Corson stood trial. See McLean, 934 So.2d at 1262 (explaining trial court’s critical gatekeeping function in assessing collateral crimes evidence where probative value must be balanced with unfairly prejudicial effect of the evidence and collateral crime testimony cannot become a feature of the trial); Seavey v. State, 8 So.3d 1175 (Fla. 2d DCA 2009) (reversing lewd and lascivious molestation conviction for a new trial where collateral crimes evidence became an improper feature of the trial); Jones, 944 So.2d at 535-36 (stating that the need to prevent collateral crime evidence from becoming a focal point is particularly great where alleged collateral crime evidence relates to more serious criminal offenses than those for which a defendant is on trial).

We must also review the improper admission of collateral crime evidence for harmless error. Denmark v. State, 927 So.2d 1079, 1082 (Fla. 2d DCA 2006). To show harmless error, the State must prove that there is “no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). We cannot conclude from the record that the admission of the collateral' crimes evidence was harmless beyond a reasonable doubt.

Reversed and remanded for a new trial.

SILBERMAN and WALLACE, JJ„ Concur.

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


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Gary Fontane EVANS, Appellee.
    No. 2D08-3082.
    District Court of Appeal of Florida, Second District.
    May 27, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals an order granting Gary Fontane Evans’ motion to suppress evidence found in his vehicle after a valid traffic stop. We reverse because Evans gave police consent to search the vehicle.

Evans was charged with possession of cocaine and resisting an officer without violence. He filed a motion to suppress arguing that police did not have probable cause to search his vehicle and that his consent to search was not voluntary. At the hearing on the motion to suppress, Officer Edward Quinn testified that he stopped Evans for failing to stop at a stop sign. Evans did not have a license and explained that he was moving the car for his girlfriend. When Officer Quinn checked Evans’ name on his computer, it revealed that Evans’ license had been suspended. Officer Quinn gave Evans a verbal warning for driving with a suspended license and told him that he could not drive the car, that he would have to get someone with a license to move it, and that he was free to leave. However, as Evans was leaving, Officer Quinn asked Evans if there were any narcotics or weapons in the vehicle and Evans said there was not. Officer Quinn then asked Evans if he would have any problem if he looked in the vehicle for narcotics or weapons, and Evans said no, he did not mind, and there was nothing in the car. After opening the driver’s door, Officer Quinn observed cocaine in the driver’s door handle. Evans did not present any evidence at the suppression hearing.

Courts must examine the totality of the circumstances when determining if an individual’s consent to search was voluntary or coerced. Luna-Martinez v. State, 984 So.2d 592, 597 (Fla. 2d DCA 2008). “Where the police have not engaged in illegal conduct, the State bears the burden of showing the voluntariness of a consent to search by a preponderance of the evidence.” Id. at 598.

Some of the factors to consider in determining whether consent is voluntary or coerced include whether the person is under arrest or otherwise detained, the age, education, intelligence, or mental condition of the person giving consent which would evidence a vulnerable state, coercive circumstances, and conduct by law enforcement such as a show of force, other threatening conduct, a prolonged detention, or verbal threats. I.R.C. v. State, 968 So.2d 583, 586-87 (Fla. 2d DCA 2007). Here, Officer Quinn made a straightforward request to search the vehicle and Evans gave his consent to search. Evans was not in custody and had been told that he was free to leave. Further, there was no evidence that Evans’ background would make him vulnerable to believing he did not have the right to refuse consent, and there was no evidence of coercion by law enforcement. Based on the totality of circumstances, we conclude that Evans’ consent to search the car was voluntary and that the motion to suppress should have been denied.

Accordingly, we reverse the order granting Evans’ motion to suppress and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

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


text:
    E.A.R., a child, Appellant, v. STATE of Florida, Appellee.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Celia A. Terenzio, and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

Based on the supreme court’s opinion in this case, we reverse the sentence imposed by the circuit court and remand for proceedings consistent with the supreme court’s opinion.

GROSS, C.J., WARNER and FARMER, JJ., concur.


text:
    Lenore LEONARD and Arthur Leonard, her husband, Appellant, v. WAL-MART STORES, INC., Appellee.
    No. 4D08-1517.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    William T. Viergever of Sonneborn, Rut-ter, Cooney & Klingensmith, P.A., West Palm Beach, for appellant.
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and David M. Tarlow of Quintamos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from the trial court’s grant of final summary judgment in favor of Wal-Mart Stores, Inc. We affirm. See Williams v. Sears, Roebuck & Co., 866 So.2d 122 (Fla. 4th DCA 2004).

Affirmed.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.


text:
    Steve A. McKENZIE and Brenda Lawson, Appellants, v. Donna REUTER and Gerald Betts, individually and on behalf of others similarly situated, Appellees. Advance America, Cash Advance Centers of Florida, Inc., a Florida corporation, Appellant, v. Donna Reuter and Gerald Betts, individually, and on behalf of others similarly situated, Appellees. George D. Johnson, Jr., William M. Webster, IV, James W. Whatley, David Gallen, Monica L. Allie And Wayne W. Hall, Appellants, v. Donna Reuter and Gerald Betts, individually, and on behalf of others similarly situated, Appellees.
    Nos. 4D08-2738, 4D08-2739, 4D08-2740.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.

      Lawrence P. Rochefort and Virginia B. Townes of Akerman Senterfítt, West Palm Beach, and Claudia T. Callaway and Christopher T. Koegel of Manatt, Phelps & Phillips, LLP, Washington, D.C., for appellants Steve A. McKenzie and Brenda Lawson.
    Lawrence P. Rochefort and Virginia B. Townes of Akerman Senterfítt, West Palm Beach, for appellants Advance America, Cash Advance Centers of Florida, Inc., a Florida corporation.
    Lawrence P. Rochefort and Virginia B. Townes, Akerman Senterfítt, West Palm Beach, and Benjamin B. Klubes and Valerie L. Hletko of BuckleySandler, LLP, Washington, D.C., for appellants George D. Johnson, Jr., William M. Webster, IV, James W. Whatley, David Gallen, Monica L. Allie, and Wayne W. Hall.
    Diana L. Martin and Theodore J. Leopold of Leopold Kuvin, P.A., Palm Beach Gardens, E. Clayton Yates of Yates & Mancini, LLC, Fort Pierce, Christopher C. Casper and John R. Newcomer of James, Hoyer, Newcomer & Smiljanich, P.A., Tampa, and Richard A. Fisher of Richard Fisher Law Office, Cleveland, Tennessee, for appellees.
   PER CURIAM.

This court sm, sponte consolidates these three cases.

We affirm the non-final order denying appellants’ motion to dismiss for lack of personal jurisdiction in all respects but one. With regard to Brenda Lawson, we find that her investment in Advance America, Cash Advance Centers of Florida, Inc. and operation of a lending company purchased by Advance America, Cash Advance Centers of Florida, Inc. did not produce sufficient minimum contacts with Florida to support personal jurisdiction over her. We reject the individual appellants’ assertion of the corporate shield doctrine because there is a sufficient basis to bring this case under the fraud or intentional misconduct exception to the doctrine. See Doe v. Thompson, 620 So.2d 1004, 1006 n. 1 (Fla.1993); Edelstein v. Marlene D’Arcy, Inc., 961 So.2d 368 (Fla. 4th DCA 2007). Nothing in this brief opinion addressing personal jurisdiction should be construed as a ruling on the viability of any claim or defense.

Affioyned, in part, reversed, in part, and remanded.

GROSS, C.J., FARMER and CIKLIN, JJ., concur.


text:
    William MARROW, Petitioner, v. STATE of Florida, Respondent.
    No. 4D09-1713.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

William Marrow petitioned this court for prohibition barring his prosecution in the Broward Circuit Court for possession of oxycodone, possession of cocaine and misdemeanor possession of drug paraphernalia.

The State has effectively conceded in its response filed in this court that petitioner is entitled to discharge and dismissal of the misdemeanor charge because that was the identical charge dismissed earlier by the Broward County Court on the grounds that speedy trial time had expired there. We agree that this precludes prosecution on this count. State v. Woodruff, 676 So.2d 975 (Fla.1996).

Petitioner has demonstrated entitlement to prohibition barring his prosecution on the felony counts as well, on speedy trial grounds. We find State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978) controlling. Petitioner was not in custody or on bond or personal recognizance before the circuit court which mailed its notice of arraignment and bond status determination to him and former counsel in the Broward County Court. No capias issued or was served incident to these charges, pursuant to Florida Rule of Criminal Procedure 3.131(j). Telephone calls to former counsel did not provide notice to petitioner either. That counsel was not representing him in the circuit court prosecution. Petitioner was under no obligation to appear in circuit court, and the State failed to show that he was not available for a speedy trial in the circuit court prosecution. Cf. Wells v. State, 881 So.2d 54 (Fla. 4th DCA 2004); Datema v. Barad, 372 So.2d 193 (Fla. 3d DCA 1979).

We grant the petition but withhold issuance of the actual writ on the presumption that the circuit court will comply with this Court’s mandate and discharge petitioner from the prosecution.

GROSS, C.J., FARMER and MAY, JJ., concur.


author: STEVENSON, J.

text:
    D.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4B08-1157.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

D.S., a minor, was charged with robbery, and as a consequence, he was also charged with violating his probation imposed for two prior misdemeanor offenses: second-degree petit theft and battery. D.S. entered a no contest plea to the charges, and the juvenile court adjudicated him delinquent, committing him to a maximum-risk residential program as a serious habitual offender pursuant to section 985.47, Florida Statutes (2008). Although his designation as a serious or habitual offender for the robbery charge was permissible, the juvenile court erred in also applying that designation to the two violation-of-probation charges where the underlying offenses were not enumerated in subsection (l)(a), and were misdemeanors. We reverse D.S.’s violation-of-probation sentences as they run afoul of section 985.47, Florida Statutes (2008), and remand for a new disposition.

In the instant case, the Department of Juvenile Justice recommended assigning D.S. to a high-risk commitment facility, but the juvenile court deliberately disregarded this recommendation, ordering D.S. to a maximum-risk facility. Because we remand for a new disposition, we note that pursuant to our supreme court’s recent decision in E.A.R. v. State, 4 So.3d 614 (Fla.2009), a juvenile court must make certain findings on the record in order to deviate from a recommendation of the Department of Juvenile Justice. As to D.S.’s remaining arguments on appeal, we are unpersuaded and affirm.

Reversed in part; affirm,ed in part.

POLEN and DAMOORGIAN, JJ., concur.


author: GROSS, C.J.

text:
    Rudolph VITTORIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-343.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

GROSS, C.J.

After the supreme court granted review based upon our reliance on Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), disapproved in part, 993 So.2d 952 (Fla. 2008), it granted the petition, quashing our decision and remanding for reconsideration upon application of its decision in Yis-rael. That decision involved whether documents submitted by the Department of Corrections to establish a prisoner’s release date from prison were admissible as exceptions to the hearsay rule. In quashing the opinion of this court, the supreme court noted that it did not have the full appellate record and could not determine for itself whether the documents submitted during Vittorio’s sentencing complied with Yisrael.

We have examined the record. The affidavit of the DOC official and attached report, which the state introduced as evidence of Vittorio’s prison release date, comply with Yisrael. We therefore affirm.

WARNER and DAMOORGIAN, JJ., concur.


text:
    Michael WALKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4305.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Michael Walkes, Indiantown, pro se.
    Bill McCollum, Attorney General, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Walkes filed a rule 3.850 motion seeking postconviction relief. The trial judge denied the motion without ordering a response from the state or attaching records to refute the claims. The court also did not state any reason for the denial in its order. As a result, we must reverse and remand for further review of the motion. See, e.g., Terry v. State,: 970 So.2d 863 (Fla. 4th DCA 2007) (citing Smith v. State, 956 So.2d 1266, 1267 (Fla. 4th DCA 2007)); see also Fla. R.Crim. P. 3.850(d); Hayes v. State, 958 So.2d 571 (Fla. 4th DCA 2007); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007).

Reversed and remanded.

GROSS, C.J., WARNER and MAY, JJ., concur.


author: WARNER, J. HAZOURI, J.,

text:
    Tamara D. ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3127.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   On Motion for Rehearing

WARNER, J.

We grant appellee’s motion for rehearing, vacate our prior opinion and substitute the following opinion in its place.

Tamara Ortiz appeals her conviction and sentence for organized fraud of less than $20,000 and driving while license revoked. She claims that the court erred in denying her requests to obtain private counsel and sentencing her as a habitual offender without obtaining a presentence investigation. We hold that the trial court did not abuse its discretion in refusing her request to discharge her counsel and employ private counsel, where the request was made after the jury had been selected and sworn. We also affirm her sentence, as her attorney waived the preparation of a presentence investigation report.

As to the trial court’s denial of Ortiz’s request to discharge appointed counsel and retain private counsel, the facts of this case are directly on point with Evans v. State, 741 So.2d 1190 (Fla. 4th DCA 1999), where we affirmed a conviction after a defendant had made a similar request on the eve of trial to discharge counsel. Here, the trial court found that Ortiz’s request, made after the jury had been selected and sworn, was invoked to delay the proceedings. We find the trial court did not abuse its discretion in denying Ortiz’s request.

The state filed its notice to seek habitual offender sentencing. Section 775.084(3)(a)l., Florida Statutes, sets forth the process required to impose a habitual felony offender sentence, which includes the provision that “[t]he court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a habitual felony offender or a habitual violent felony offender.” The PSI requirement, however, can be waived, as can all of the procedural rights under the statute. See Jefferson v. State, 571 So.2d 70 (Fla. 1st DCA 1990). The record in this case reflects that Ortiz’s attorney waived the PSI requirement at the end of trial and again at sentencing.

Ortiz argues that the record must show her personal waiver, and her attorney’s waiver is insufficient. We disagree. Failure to obtain an on-the-record personal waiver of the right to a PSI is not required under current supreme court precedent, and it does not constitute fundamental error.

In State v. Griffith, 561 So.2d 528 (Fla. 1990), the supreme court held that the waiver of a non-fundamental right requires no personal on-the-record waiver. There, a defense attorney waived a defendant’s right to a twelve-person jury in a death penalty case. Because the right waived was not a fundamental one (as opposed to the right to a jury trial itself), an on-the-record showing of a defendant’s personal knowing and intelligent waiver of that right was not required. Thus, defense counsel’s on-the-record waiver of the defendant’s right was sufficient.

Griffith considered the waiver of the twelve-person jury a tactical decision on the part of defense counsel for which a court is not required to obtain the personal waiver of a right. It referred to its prior holding in State v. Singletary, 549 So.2d 996, 997 (Fla.1989):

It is impractical and unnecessary to require an on-the-record waiver by the defendant to anything but those rights which go to the very heart of the adjudicatory process, such as the right to a lawyer or the right to a jury trial. Fla. R.Crim. P. 3.260.

Griffith, 561 So.2d at 530 (citation omitted).

The right to a PSI is not a fundamental, constitutional right, nor does it go to the heart of the adjudicatory process. It is a statutory right involving sentencing. In this case, defense counsel waived the PSI not only once but twice. It was discussed by the court, the state attorney, and Ortiz’s public defender in her presence. As in Griffith, she “should not now be heard to complain.” Id. at 530.

Bardwell v. State, 617 So.2d 431 (Fla. 4th DCA 1993), a direct appeal from a conviction and sentence, is distinguishable. There, we cited to Likely v. State, 583 So.2d 414 (Fla. 1st DCA 1991), for the proposition that a defendant can “knowingly waive” the right to a PSI, but we found no waiver present and thus reversed for resentencing. However, Bardwell does not involve an attorney waiver of the PSI, as is present in this case.

Furthermore, Likely and Jones v. State, 643 So.2d 1150 (Fla. 3d DCA 1994), involved appeals from orders denying post-conviction relief. In each case the court held that the motion alleging the trial court’s failure to obtain a PSI prior to sentencing could be summarily denied, because each defendant personally waived the right to a PSI during their respective plea colloquies. Neither case held that the failure to obtain a personal waiver constituted a fundamental error remediable on direct appeal. The fact that the defendants personally waived the PSI at their respective plea colloquies simply permitted the court to summarily deny the motion. Since neither case deals with an on-the-record waiver by an attorney in a direct appeal of a sentence, neither case is authority for reversal in this case.

For the foregoing reasons, we affirm the conviction and sentence.

POLEN, J., concurs.

HAZOURI, J., concurs specially.

HAZOURI, J.,

concurring specially.

I concur and write to emphasize that although not required, the better practice would be for the trial court to obtain an on the record waiver of the PSI by the defendant. Section 775.084(3)(a)l., Florida Statutes (2007), provides:

(8)(a) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender. The procedure shall be as follows:
1. The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a habitual felony offender or a habitual violent felony offender.

Although not a fundamental right, the PSI is a mandatory statutory right unless waived. Therefore I would strongly urge trial judges have a defendant acknowledge on the record his or her waiver of the PSI. By doing so, there should be no question that this statutory right has been waived.

      . We agree, however, with the Griffith court when it said:
      Although we expressly hold that the trial court did not have an affirmative duty to make a record inquiry concerning Griffith’s waiver of a trial by a twelve-person jury, when a defense waiver is required as to any aspect or proceeding of a trial, it would be the better procedure for the trial court to make an inquiry of the defendant and to have the waiver appear on the record. The matter would thus be laid to rest and preclude any appeal or postconviction claims of ineffective assistance of counsel.

        Id. at 531 n. 5 (emphasis supplied).


text:
    Jennifer June SCHINSTINE n/k/a Jennifer Fannin, Former Wife, Appellant, v. William Thomas SCHINSTINE, Former Husband, Appellee.
    No. 1D09-1203.
    District Court of Appeal of Florida, First District.
    June 3, 2009.
    Clay B. Adkinson, Adkinson Law Firm, LLC, Defuniak Springs, for Appellant.
    Laura E. Keene, Beroset & Keene, Pensacola, for Appellee.
   PER CURIAM.

DISMISSED. See Quarterman v. McNeil, 1 So.3d 392, 393 (Fla. 1st DCA 2009) (noting that had the order on appeal been a final order the motion for rehearing would have delayed rendition); Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157, 159 n. 2 (Fla. 1st DCA 2007) (noting Florida Rule of Appellate Procedure 9.020(h) provides that certain motions delay rendition of any final orders).

BENTON, LEWIS, and CLARK, JJ„ concur.


text:
    Tawanna JOHNSON, as mother and natural guardian of M.S., her minor son, Petitioner, v. Douglas HOWARD, Respondent.
    No. 1D09-2564.
    District Court of Appeal of Florida, First District.
    June 3, 2009.
    Thomas J. Brown of Brown & Brown, Attorneys at Law, P.A., Tallahassee, for Petitioner.
    J. Richard Caldwell, Jr., and Darren A. Schwartz of Rumberger, Kirk & Caldwell, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Ali Investments, Inc. v. First American Title Insurance, 929 So.2d 1154 (Fla. 5th DCA 2006).

BARFIELD, WEBSTER, and DAVIS, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    Raymond LOTT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1866.
    District Court of Appeal of Florida, Second District.
    June 5, 2009.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robert J. Krauss, Chief-Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Chief Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the judgment and sentences following revocation of Mr. Lott’s probation. We remand, however, for the circuit court to enter a written order of revocation. See, e.g., Covert v. State, 775 So.2d 315 (Fla. 2d DCA 2000).

Affirmed and remanded with directions.

WHATLEY and VILLANTI, JJ., Concur.


text:
    Raymond L. AVILA, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1970.
    District Court of Appeal of Florida, Second District.
    June 5, 2009.
    Raymond L. Avila, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

In 2001, Raymond Avila was convicted of burglary with a battery and the additional offense of battery as a lesser included offense of sexual battery. He was sentenced to twenty-five years in prison for the burglary and to a concurrent 364 days for the battery. He filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and he appeals the denial of relief after an eviden-tiary hearing. We reverse the denial of relief on a single claim and affirm on the remaining claims without further discussion.

Avila argues that a double jeopardy violation occurred when he was convicted and sentenced for both burglary with a battery and battery. Although the prosecutor below attempted to avoid this conclusion by pointing out that Avila was charged with sexual battery and only convicted of battery as a lesser included offense of that charge, the State on appeal concedes that Avila may have a valid claim. We agree that if only a single battery occurred, the protection against double jeopardy was violated by convictions for both burglary with battery and battery. See Watson v. State, 646 So.2d 288 (Fla. 2d DCA 1994); see also Bradley v. State, 540 So.2d 185 (Fla. 5th DCA 1989). Accordingly, we reverse the denial of relief on this claim. On remand, the court may again deny relief if it can attach portions of the record conclusively showing that multiple batteries occurred. Failing that, the postconviction court must vacate the battery conviction.

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY and VILLANTI, JJ., Concur.