author: WALLACE, Judge.

text:
    Jana THORPE, Appellant, v. M. Suzanne MYERS, as Guardian of the Property of Mary K. Zwayer, and Thomas Zwayer, as Guardian of the Person of Mary K. Zwayer, Appellees. Michael Love-Zwayer and Joan Duffee, Appellants, v. M. Suzanne Myers, as Guardian of the Property of Mary K. Zwayer, and Thomas Zwayer, as Guardian of the Person of Mary K. Zwayer, Appellees.
    Nos. 2D10-2977, 2D10-3402.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.

      J. Steven Southwell, II, and Eduardo F. Morrell of Morrell, Watson & Southwell, P.A., Wauchula, for Appellant Jana Thorpe.
    James C. McClendon, II, of Weaver, McClendon & Penrod, LLP, Lake Wales for Appellants Michael Love-Zwayer and Joan Duffee.
    James V. Lobozzo, Jr., of McClure & Lobozzo, Sebring, for Appellees.
   WALLACE, Judge.

In Case No. 2D10-2977, Jana Thorpe, a professional guardian, appeals the circuit court’s order denying her any compensation for her services as the emergency temporary guardian of Mary K. Zwayer (the Ward). In Case No. 2D10-3402, Michael Love-Zwayer and Joan Duffee, who successfully petitioned for the creation of a guardianship for the Ward, appeal the circuit court’s order denying their attorneys any fees or reimbursement of costs. Because both Ms. Thorpe and the petitioners’ attorneys are entitled to reasonable compensation under section 744.108, Florida Statutes (2009), the circuit court erred in failing to make appropriate awards to them. Accordingly, we reverse the circuit court’s order in each case and remand for further proceedings.

I. THE FACTUAL AND PROCEDURAL BACKGROUND COMMON TO BOTH CASES

These consolidated cases involve two separate orders and different appellants. However, the appellees are the same in each case. The two cases also share a common core of facts. This court previously consolidated the cases on the appel-lees’ motion.

On October 6, 2009, two of the Ward’s children, Michael Love-Zwayer and Joan Duffee, filed a petition in the Highlands County Circuit Court to determine the incapacity of the Ward. In their petition, Michael and Joan alleged that the Ward, who was ninety-three years old, was suffering from dementia. Michael and Joan also filed a petition seeking the appointment of Ms. Thorpe as the plenary guardian of the person and property of the Ward. Ms. Thorpe was a professional guardian registered with the Statewide Public Guardianship Office.

The Ward had nine children living when the petitions were filed. In the months preceding the filing of the petitions, most of the Ward’s nine children had substantial disagreements concerning access to the Ward and the handling of her finances. Such disagreements and concerns about these matters led Michael and Joan to file a separate petition seeking the appointment of Ms. Thorpe as the emergency temporary guardian of the Ward. In this petition, Michael and Joan alleged that some of the Ward’s other children had (1) concealed the Ward’s whereabouts; (2) moved the Ward from Ohio to Florida at a time when her health was at risk; (3) changed the Ward’s accounts and assets into joint ownership; (4) sold some of the Ward’s assets and used the proceeds to purchase things for themselves, including a boat; and (5) generally failed to account for, or to otherwise explain, their management of the Ward’s affairs.

On October 7, 2009, the circuit court entered an order appointing Ms. Thorpe as the emergency temporary guardian of the Ward. This order was entered without notice to the Ward’s other children. The order appointing Ms. Thorpe recited that it appeared to the circuit “court that there is an imminent danger that the physical or mental health or safety of the alleged incapacitated person will be seriously impaired or that the property of that person is in danger of being wasted, misappropriated or lost unless immediate action is taken.” Although Thomas Zwayer, one of the ap-pellees, filed a motion to revoke Ms. Thorpe’s appointment, the circuit court never revoked or vacated her appointment as emergency temporary guardian. Indeed, the circuit court later extended Ms. Thorpe’s original ninety-day appointment until “April 5, 2010, or [until] such time as a plenary guardian is appointed ..., whichever occurs first.”

Meanwhile, the examining committee that was appointed as a result of the petition to determine incapacity found the Ward to be totally incapacitated. The examining committee recommended the appointment of a plenary guardian for the Ward. In a decision which disturbed some of the Ward’s children, Ms. Thorpe removed the Ward from her home in Avon Park and placed her in an assisted living facility (the ALF). Jon Zwayer, one of the Ward’s sons, had been living with the Ward in her Avon Park residence and acting as her caregiver.

As the guardianship proceedings progressed, the various siblings gravitated into factions, lawyers were hired, and litigation commenced. The issues in controversy revolved around the necessity for the appointment of a guardian and, if a guardianship was established, the best candidate for appointment as guardian. Thomas Zwayer initially opposed the creation of a guardianship, but he also filed a competing petition to be appointed as the plenary guardian of the person and property of the Ward.

To their credit, the Ward’s children eventually realized that continued litigation over these matters was not in anyone’s interest. The mounting costs of the litigation were also inconsistent with the conservation of the Ward’s relatively modest estate. At a hearing held on January 22, 2010, the nine siblings stipulated to a settlement. In accordance with the settlement agreement, the Ward was declared to be totally incapacitated. Thomas was appointed plenary guardian of the Ward’s person. One of the Ward’s daughters, M. Suzanne Myers, was appointed plenary guardian of the Ward’s property. The boat, motor, and trailer which had been bought with over $14,000 of the Ward’s money and titled in the names of one of her sons and his wife were to be sold and the proceeds paid to the Ward’s estate. And the Ward would leave the ALF and return home, spending one-half of the year at her home in Avon Park and the other one-half of the year in Ohio. Jon apparently resumed his role as the Ward’s caregiver at the Avon Park residence.

Unfortunately, the settlement agreement did not address the issue of fees and costs for Ms. Thorpe or for the attorneys for the petitioners, Michael and Joan. The omission to address the issue of payment of these fees and costs set the stage for the additional disputes that are the subject of these appeals.

We will discuss first the issue of Ms. Thorpe’s fees for her services as emergency temporary guardian. Then we will consider Michael and Joan’s petition for the payment of the fees and costs of their attorneys. But before discussing these matters, we will note the applicable standards of review.

II. THE APPLICABLE STANDARDS OF REVIEW

Generally speaking, appellate review of orders awarding guardian’s fees and attorney’s fees is for abuse of discretion. See Lutheran Servs. Fla., Inc. v. McCoskey (In re Guardianship of Shell), 978 So.2d 885, 889-90 (Fla. 2d DCA 2008) (guardian’s fees); Butler v. Guardianship of Peacock, 898 So.2d 1139, 1141 (Fla. 5th DCA 2005) (attorney’s fees); Gamse v. Touby, 382 So.2d 115, 116 (Fla. 3d DCA 1980) (guardian’s fees and attorney’s fees). However, in this case, the circuit court did not award any fees at all to Ms. Thorpe or to the attorneys for Michael and Joan. The circuit court’s decision to deny them any fees was based both on its interpretation of section 744.108 and its findings that their services did not benefit the Ward.

We defer to the circuit court’s findings of fact when they are based on competent, substantial evidence. State, Fla. Highway Patrol v. Forfeiture of Twenty Nine Thousand Nine Hundred & Eighty (29,980) in U.S. Currency, 802 So.2d 1171 1172 (Fla. 3d DCA 2001). However, we are not required “to disregard record evidence that disproves the lower court’s findings or that reveals its ruling to be an abuse of discretion.” In re Doe, 932 So.2d 278, 284 (Fla. 2d DCA 2005). To the extent that the circuit court based its rulings on its interpretation of the pertinent statute, we employ a de novo standard of review. See Ware v. Land Title Co. of Fla., Inc. 582 So.2d 46, 46-17 (Fla. 2d DCA 1991) (applying de novo review).

III. MS. THORPE’S GUARDIAN’S FEES, CASE NO. 2D10-2977

A. Ms. Thorpe’s Fee Petition

On March 29, 2010, Ms. Thorpe filed a petition for guardian’s fees. The petition was accompanied by a detailed listing of her services rendered and the times devoted to the various services. In her petition, Ms. Thorpe alleged that she had spent 162.6 hours on the case between October 7, 2009, and January 21, 2010. She requested payment for 162.6 hours at the rate of $80 per hour for a total of $13,008, in compensation. Thomas and Suzanne promptly filed an objection to the petition. In their objection, Thomas and Suzanne stated that they did not object to the number of hours for which Ms. Thorpe had billed. Instead, they objected only to her $80-per-hour billing rate. According to Thomas and Suzanne, professional guardians in Highlands County typically charge between $25 and $40 per hour.

On May 4, 2010, Ms. Thorpe filed her final report. In her report, Ms. Thorpe explained that after the settlement was announced at the January 22 hearing, she anticipated the termination of the emergency temporary guardianship within thirty days. However, delays in obtaining the appointment of Thomas and Suzanne to their respective positions had unexpectedly prolonged Ms. Thorpe’s service as emergency temporary guardian. On May 4, 2010, Ms. Thorpe filed a supplemental petition for guardian’s fees. In the supplemental petition, Ms. Thorpe requested compensation for an additional 33.3 hours at her new billing rate of $85 per hour, for a total of $2830.50 in additional compensation.

The circuit court conducted a hearing on Ms. Thorpe’s request for compensation. Ms. Thorpe testified in her own behalf at the hearing. The only other witnesses to testify at the hearing were Jon Zwayer and the attorney for the Ward. They each testified briefly concerning their knowl-' edge of one or two of Ms. Thorpe’s time entries. In argument, Thomas and Suzanne expanded their objections to Ms. Thorpe’s fee petition from the rate charged to include (1) the number of hours claimed, (2) the charges made after the expiration of the emergency temporary guardianship, and (3) an unfavorable assessment of the results obtained. At the conclusion of the hearing, the circuit court did not announce a ruling. Instead, the circuit court directed counsel to submit proposed orders.

B. The Circuit Court’s Order

In its order, the circuit court denied Ms. Thorpe’s fee petition in its entirety. The circuit court reasoned that Ms. Thorpe was not entitled to any compensation from the Ward’s estate because her services “were of minimal, if any[,] benefit to the Ward, and were intended to benefit [Michael and Joan] in the Petition for Emergency Temporary Guardian.” Despite this ruling, the circuit court also ruled that (1) the reasonable number of hours Ms. Thorpe had devoted to the guardianship was 84.20, (2) a reasonable hourly rate for her services was $40, and (3) a reasonable fee for her services was $3368. The circuit court concluded by noting that Ms. Thorpe was “not precluded by this Order from seeking payment of her fees from [Michael and Joan] who sought her appointment as Emergency Temporary Guardian herein.”

C. Discussion

We conclude that the circuit court erred in denying Ms. Thorpe any compensation for the services she rendered as emergency temporary guardian. Two reasons support our conclusion. First, the circuit court’s ruling is based on a misreading of the applicable statute. Second, the undisputed evidence presented at the hearing does not support the circuit court’s findings of fact.

1. The Statute

Section 744.108, the applicable statute, provides, in pertinent part, as follows:

(1) A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.

Section 744.108(2) continues by listing nine factors that the circuit court must consider when a petition for guardian’s fees or attorney’s fees is submitted for determination. Under the statute, a guardian is entitled to a reasonable fee for services rendered. Lucom v. Atl. Nat’l Bank of W. Palm Beach, 97 So.2d 478, 481 (Fla.1957); Schacter v. Guardianship of Schacter, 756 So.2d 1075, 1076 (Fla. 4th DCA 2000); Ash v. Coconut Grove Bank, 448 So.2d 605, 607-08 (Fla. 3d DCA 1984).

There are some exceptions to the general rule entitling a guardian to payment for services rendered, but these exceptions are limited. We briefly mention three such exceptions. First, a guardian cannot expect to be compensated for services rendered outside the scope of his or her appointment. In re Guardianship of Jansen, 405 So.2d 1074, 1077 (Fla. 2d DCA 1981); Poling v. City Bank & Trust Co. of St. Petersburg, 189 So.2d 176, 182-83 (Fla. 2d DCA 1966). Second, a guardian guilty of theft or other breach of duty may forfeit the right to compensation. See Am. Surety Co. of N.Y. v. Hayden, 112 Fla. 17, 150 So. 114, 121 (1933). Third, on occasion, usually when a family member is appointed, a guardian may agree to serve without compensation. Here, there is no exception to the statutory requirement that guardians be compensated for their services.

In order for an attorney to be awarded fees from the ward’s estate under section 744.108(1), the attorney’s services must benefit the ward or the ward’s estate. See Butler, 898 So.2d at 1141. The clause in section 744.108(1) requiring the demonstration of the beneficial nature of the services rendered applies to attorneys, not guardians. Thus, under the statutory language, a guardian is not required to demonstrate that his or her services conferred a benefit on the ward or the ward’s estate as a prerequisite for obtaining a compensation award. The statute appears to presuppose that a guardian’s services benefit the ward or the ward’s estate. Cf. Essenson v. Lutheran Servs. Fla., Inc. (In re Guardianship of King), 862 So.2d 869, 870 (Fla. 2d DCA 2003) (“Florida cases in which fees have been denied to court-appointed representatives appear to be only those in which he or she was found to have exceeded the scope of appointment.” (citing Jansen, 405 So.2d at 1077)).

It follows that the circuit court reached an incorrect legal conclusion in ruling that Ms. Thorpe was required to demonstrate that her services as emergency temporary guardian were beneficial to the Ward or the Ward’s estate as a condition of receiving court-awarded compensation. The statutory scheme presumes that the services of guardians provide a benefit. To the extent that the services of a guardian are unnecessary or unproductive, the circuit court may reduce the requested compensation based on the factors listed in section 744.108(2) but may not deny compensation altogether.

2. The Factual Findings

The circuit court based its decision to deny Ms. Thorpe any compensation in substantial part on a finding that her services “were of minimal, if any[,] benefit to the Ward, and were intended to benefit [Michael and Joan] in the Petition for Emergency Temporary Guardianship.” A review of the testimony presented at the hearing on Ms. Thorpe’s fee petition reveals a lack of any evidentiary support for this finding. And the detail of Ms. Thorpe’s services attached to her fee petition was replete with services performed on behalf of the Ward and her estate. Except for opposing testimony concerning the time expended on two or three tasks, this evidence was unrebutted.

The rationale for the circuit court’s finding appears to be the partial restoration of the status quo ante resulting from the siblings’ settlement. The Ward left the ALF, and she resumed living in her Avon Park residence with her son Jon. But the restoration of the earlier state of affairs resulting from the settlement was by no means complete. Plenary guardians of the person and property were appointed for the Ward. Thus the Ward’s care and finances were placed under the court’s supervision and protection, substantially reducing the possibility of her abuse or exploitation. The boat, motor, and trailer were required to be sold and the proceeds returned to the Ward’s estate. Undeniably, the creation of a guardianship for the Ward was appropriate, or the circuit court would not have approved the settlement agreement.

Ms. Thorpe performed important services on behalf of the Ward while the Ward’s children were battling over the necessity for the creation of a guardianship and over who would be appointed as the Ward’s guardian. There is nothing in the record suggesting that Ms. Thorpe was working for Michael and Joan in disregard of her obligation to act in the best interests of the Ward. A family member or members frequently petition the court for the appointment of a guardian, but the court decides whether a guardianship is appropriate and, if so, appoints the guardian. The guardian works in the interest of the ward under the supervision and control of the court, not at the behest of the person or persons who sought the appointment.

In addition, on December 1, 2009, almost two months after Ms. Thorpe’s appointment, the circuit court actually extended Ms. Thorpe’s tenure as emergency temporary guardian for another four months. The circuit court’s decision to continue rather than to terminate Ms. Thorpe’s appointment supports the conclusion that her services were necessary and beneficial for the Ward, not that they “were of minimal, if any[,] benefit.”

The order appointing Ms. Thorpe as emergency temporary guardian placed her squarely in the middle of a complicated and contentious family quarrel. The court-appointed attorney for the Ward described the Zwayer case as “the most contentious guardianship I’ve seen in years.” The record reflects that Ms. Thorpe did what she thought was best for the Ward under difficult and trying conditions. Granted, one might quibble with some of Ms. Thorpe’s time entries and question her requested hourly rate, but her right to receive reasonable compensation was not diminished or nullified by the partial restoration of the status quo ante resulting from the settlement agreement.

D. Proceedings on Remand

For the foregoing reasons, we reverse the circuit court’s order denying Ms. Thorpe any compensation. However, on remand, it will not be sufficient for the circuit court to enter an order awarding Ms. Thorpe the $3368 that it determined to be a reasonable fee. Although the circuit court made a finding in its order concerning the number of hours it deemed reasonable, we are unable to determine from the order how the circuit court arrived at this finding. The order does not delineate the services for which compensation was deemed permissible and the services for which compensation was disallowed. This deficiency frustrates meaningful appellate review of the order’s alternative finding that $3368 amounts to reasonable compensation for Ms. Thorpe’s services.

Accordingly, on remand, the circuit court shall enter an order awarding Ms. Thorpe a reasonable fee for her services. The amount awarded shall be supported by express findings either in the order or on the record concerning the hours allowed and disallowed and the other factors considered in arriving at the amount of the award. See Valentini v. State (In re Guardianship of Sitter), 779 So.2d 346, 348-49 (Fla. 2d DCA 2000); Jones v. Dunning, 661 So.2d 941, 942 (Fla. 5th DCA 1995).

IV. MICHAEL AND JOAN’S PETITION FOR ATTORNEY’S FEES, CASE NO. 2D10-3402

A. The Petition and the Circuit Court’s Order

After the settlement was reached, Michael and Joan, the original petitioners, filed a petition requesting fees and costs for the attorneys who had represented them in the guardianship proceedings. The circuit court entered an order on their petition denying any fees and costs to their attorneys. The circuit court explained that “the services provided by counsel for petitioners were not on behalf of the Ward but were on behalf of the petitioners and other family members.” We conclude that the circuit court erred in failing to award the attorneys for Michael and Joan at least a portion of their fees and costs.

B. Discussion

Under section 744.108(1), “an attorney is entitled to receive a reasonable attorney’s fee for professional services rendered and reimbursement of costs incurred for the benefit of the ward; payment of reasonable compensation is mandatory.” Price v. Austin, 43 So.3d 789, 790 (Fla. 1st DCA 2010). Under the statute, “the probate court is not ‘at liberty to award anything more or less than fair and reasonable compensation for the services rendered or monies expended in each individual case.’ ” Lutheran Servs., 978 So.2d at 890 (quoting Lewis v. Gramil Corp., 94 So.2d 174, 176 (Fla.1957)). However, the attorney’s entitlement to payment of reasonable fees and costs is subject to the limitation that his or her services must benefit the ward. King v. Fergeson, Skipper, Shaw, Keyser, Baron, & Tirabassi, P.A., 862 So.2d 873, 874 (Fla. 2d DCA 2003) (Villanti, J., concurring specially); Butler, 898 So.2d at 1141.

We are unable to conclude that the circuit court abused its discretion in denying fees and reimbursement of costs to Michael and Joan’s attorneys to the extent that they pursued unproductive litigation over who would be appointed as guardian or other goals that did not benefit the Ward or her estate. See Butler, 898 So.2d at 1141. But the attorneys also initiated the proceedings for the determination of the Ward’s incapacity and for the appointment of a guardian. As a direct result of these efforts, the Ward was determined to be totally incapacitated and the circuit court appointed plenary guardians of her person and property. Unquestionably, these services benefitted the Ward. It follows that the attorneys for Michael and Joan were entitled to their fees and costs related to those efforts. Id. at 1141. The circuit court erred in ruling to the contrary. Accordingly, we reverse the circuit court’s order to the extent that it denied Michael and Joan’s petition for attorney’s fees and costs related to these efforts.

C. Proceedings on Remand

On remand, the circuit court must reconsider the petition and make an appropriate award of fees and costs to Michael and Joan’s attorneys. The circuit court’s order must set forth the basis for the award, including the hours determined to be com-pensable, the hourly rate, and the other factors considered in arriving at the award. The order must also itemize the costs allowed. See Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003); Guardianship of Halpert v. Martin S. Rosenbloom, P.A., 698 So.2d 938, 939 (Fla. 4th DCA 1997); Jones, 661 So.2d at 942.

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

NORTHCUTT and CRENSHAW, JJ., Concur.

      . The settlement agreement also omitted to address payment of the fees and costs of the attorneys for Thomas and Suzanne. Later, the circuit court ordered payment to their attorneys of $23,936 in fees and reimbursement of costs of $2729.23, for a total award of $26,665.23. There was no objection to this award. The order awarding fees and costs to the attorneys who represented Thomas and Suzanne in the circuit court is not at issue on this appeal.

      . However, as previously noted, the circuit court ordered that the fees and costs for Thomas' attorneys, amounting to more than $26,000, be paid in full from the Ward’s estate. Thus, in an ironic twist, the attorneys who unsuccessfully opposed the creation of the guardianship were paid in full; the attorneys who successfully proposed the creation of the guardianship were awarded nothing.


source: Caselaw Access Project

license: Public Domain

text:
    S.C., Appellant, v. A.D., Appellee.
    No. 2D10-953.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.

      Sarah Baker Sultenfuss of Sarah Baker Sultenfuss, P.A., Dade City, for Appellant.
    No appearance for Appellee.
   WALLACE, Judge.

S.C. appeals a final judgment of injunction for protection against domestic violence without minor children after notice. The circuit court issued the injunction in favor of A.D. Because there is no competent, substantial evidence in the record to support the issuance of the domestic violence injunction, we reverse.

A.D. lived with her mother and S.C. from the time she was about six or eight years old until she was seventeen. During this time, A.D.’s mother and S.C. had a son. In 2004, A.D., her mother, and S.C. had an altercation. This incident resulted in the filing of criminal charges against S.C. and the issuance of two injunctions for protection against domestic violence. One of the injunctions was in favor of A.D.’s mother; the other was in favor of A.D. Both injunctions were issued in 2005. The circuit court denied a petition for a domestic violence injunction filed by A.D.’s mother on behalf of her son. S.C. did not appeal from the two injunctions issued against him and did not seek to have them dismissed. On July 18, 2008, for reasons not explained in the record, the circuit court dismissed the injunction issued in favor of A.D.’s mother. But the injunction for the protection of A.D. was still in effect up to the date of the hearing that resulted in the entry of the injunction at issue in this appeal.

After A.D.’s mother and S.C. separated, S.C. went to work for a private contractor in Iraq. On December 15, 2009, shortly after S.C. returned to Florida from Iraq, he attempted to contact his son at the youth’s middle school. There, he was prevented from doing so by law enforcement officers, who apparently believed — or were informed — that an injunction was in place for the protection of S.C.’s son. But there was no such injunction. Next, S.C. made an appointment at a medical clinic where his family had been long-time patients. A.D. worked at that clinic. S.C. testified that he was unaware of this fact. He testified further that as soon as he learned of A.D.’s employment at the clinic, he can-celled the appointment.

When A.D. discovered that S.C. had returned to Florida, she filed a new petition for protection against domestic violence. In her petition, A.D. alleged the facts pertaining to the 2004 incident and asserted that “[S.C.] is now back in town trying to see his son, and I’m scared he will do anything he can to try and get ahold of him. He is a violent alcoholic and I don’t trust him or what actions he will take.” She also alleged that S.C. was drunk during the 2004 incident, cannot remember what happened, and blames her for not being able to see his son. A.D. added that S.C. “has nothing to lose,” that the events of the past continue to haunt her, and that she does not want to see the man who “tried to ruin my life.”

At the hearing on A.D.’s current petition, there was considerable focus on the 2004 incident that led to the issuance of the 2005 domestic violence injunction. But after the 2004 incident, there was never any contact between S.C. and A.D. A.D. knew that S.C. had returned to the area because she had heard about his attempt to contact her brother at his school and because she learned that S.C. had made an appointment at the medical clinic where she works. But S.C. did not attempt to contact her. Indeed, it appears that S.C. tried to avoid any contact with A.D. by cancelling his appointment at the clinic.

At the hearing on her petition, A.D. explained that she was seeking a new domestic violence injunction because she had been informed by the Clerk of the Pasco County Circuit Court that the 2005 injunction had been dismissed, that she feared that S.C. would “seek revenge because ... he doesn’t remember what happened” on the night of the 2004 incident, and that S.C. was going to stalk her or harass her in an effort “to get a hold of my brother.” She also testified that she wanted an injunction because the original one “should never have been dropped to begin with.” Finally, A.D. testified that she did not want to become involved in S.C.’s attempts to communicate with his son, “because he cannot find out where his son is.”

To summarize, other than repeating the facts upon which the 2005 injunction was based, A.D.’s reasons for petitioning the court for a new injunction were (1) her incorrect assumption — based on the allegedly erroneous information provided by the Pasco County Clerk — that the existing injunction issued for her protection was no longer in effect, (2) her additional incorrect assumption that S.C. was not allowed to contact his son, and (3) that she did not want S.C. to involve her in his attempt to see his son, something which he had not attempted to do.

The circuit court observed that there was an existing indefinite injunction in place. However, noting that there was a considerable amount of misinformation and confusion about the status of that injunction, the trial court decided to issue a new injunction “because of this confusion over the other case.” The circuit court reached this determination despite its acknowledgment that a new injunction would be “du-plicative.” The circuit court also noted that S.C. had been found guilty of a misdemeanor battery arising out of the 2004 altercation and indicated that it was, in part, basing its decision to issue the new injunction on that fact as well.

Section 741.30(l)(a), Florida Statutes (2009), provides that a family or household member may file a petition for an injunction for protection against domestic violence if that person “is either the victim of domestic violence as defined in [section] 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” Section 741.28(2) defines domestic violence as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”

The circuit court appears to have decided to issue the injunction — at least in part — based on the events that resulted in the issuance of the 2005 domestic violence injunction. This court has recently said that “an isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations.” Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010) (comparing Jones v. Jones, 32 So.3d 772 (Fla. 2d DCA 2010), with Giallanza v. Giallanza, 787 So.2d 162 (Fla. 2d DCA 2001)). This case is somewhat distinguishable from Gill, Jones, and Giallanza because here an injunction had been issued immediately following the 2004 incident, whereas in those cases it had not.

The trial court’s rationale for issuing the injunction on appeal in this case was apparently that a prior, valid final judgment of injunction for protection against domestic violence was in danger of being violated and that A.D. had been misinformed about the status of that 2005 injunction. But neither of these factors provides a basis for the issuance of a new injunction for protection against domestic violence. Unlike the petitioner in Gialianza, A.D. did not testify to any behavior on the part of S.C. that, when coupled with the prior incident, could support the issuance of a new injunction. Where, as in this case, “fear alone is the ‘reasonable cause’ alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well.” Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007) (citing Gustafson v. Mauck, 743 So.2d 614, 615 (Fla. 1st DCA 1999)). Here, there was no objectively reasonable basis for such fear. In fact, S.C. had not had any contact with A.D.— or even attempted to contact her — since 2004. Finally, A.D. failed to allege any behavior by S.C. that would support a finding that he had violated the terms of the domestic violence injunction that was already in place. Had he done so, the appropriate course of action would have been to seek relief for the violation of the existing injunction, not to issue another one.

Following the circuit court’s ruling that it would issue a “duplicative” injunction, S.C.’s counsel asked the circuit judge if this meant that there would now be two active injunctions in place. The circuit judge responded that she would be happy to dissolve the other injunction if counsel wanted her to do so and asked counsel to prepare an order of dismissal. There is no such order of dismissal in our record. So we do not know if the 2005 injunction is still in effect or if it was dismissed after the hearing. If the circuit court dismissed the earlier injunction, our reversal of the new injunction raises the possibility that there will no longer be any injunction in place for A.D.’s protection. But we need not address the propriety of any dismissal of the earlier injunction or direct that it be reinstated if it was dismissed because that matter is not before us.

This is a case driven by misinformation. An injunction was claimed to exist for the protection of A.D.’s brother that, in fact, did not exist. A.D. was led to believe that her perfectly valid and enforceable domestic violence injunction was not in force. Under these facts, we can appreciate the trial judge’s desire to clear the air. But the new injunction was issued under circumstances where the only act of domestic violence had occurred five years earlier, and the petitioner failed to establish a reasonable fear that she was in imminent danger of becoming the victim of an act of domestic violence. And while we understand the trial judge’s motives, we are unable to find any legal support for the issuance of a “duplicative” injunction based solely on the existence of an earlier valid and enforceable indefinite injunction. Under these unusual circumstances, we are obligated to reverse the judgment on appeal.

Reversed.

CASANUEVA and CRENSHAW, JJ., Concur.

      . After a jury trial, S.C. was found guilty of misdemeanor battery on A.D.

      . The appellate record in this case is limited and does not include copies of the 2005 injunctions. Our account of the earlier proceedings is based on the testimony of the parties at the hearing held in 2010, the allegations in A.D.’s petition, and the final judgment entered on January 21, 2010.

      . A.D. had standing to file the petition because she resided with S.C. "in the past as if a family.” See §§ 741.28(3), .30(l)(e).

      . In Jones, a pushing incident that occurred three years before the injunction was filed was held to be insufficient to support the issuance of an injunction. 32 So.3d at 773-74. In Giallanza, allegations of actual violence eight to ten years before the petition was filed were held to be sufficient when coupled with allegations that the husband had been angry and verbally abusive due to the couple's impending divorce. 787 So.2d at 164.

      . Violation of a domestic violence injunction is a first-degree misdemeanor. § 741.31(4)(a).


author: VILLANTI, Judge.

text:
    Anton C. DOE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-543.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.
    Rehearing Denied Aug. 19, 2011.
    James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In this Anders appeal with preserved sentencing issues, Doe seeks review of his convictions and sentences for five counts of attempted robbery with a firearm. We affirm Doe’s convictions and sentences without further comment. However, we remand for the trial court to strike one duplicative cost.

The record shows that the trial court twice imposed the Indigent Criminal Defense Fee pursuant to section 27.52, Florida Statutes (2009) — once in the amount of $50 in the final judgment and sentence that was rendered January 21, 2009, and amended on June 15, 2010, and again in the amount of $40 in a separate “judgment for fine and costs” that was rendered on January 26, 2009. This fee is assessed per application for counsel, see § 27.52(l)(b) (imposing the fee “for each application for court-appointed counsel”), and nothing in the record shows that Doe submitted more than one application for court-appointed counsel. Accordingly, we remand with directions to the court to strike as duplica-tive the separate “judgment for fine and costs” pursuant to section 27.52 in the amount of $40 rendered January 26, 2009.

Affirmed and remanded with directions.

WHATLEY and WALLACE, JJ., Concur.

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

      . Doe preserved his sentencing issues by filing a timely motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).


author: SILBERMAN, Chief Judge.

text:
    Brian Douglas HAAG, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5934.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.
    Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Chief Judge.

Brian Douglas Haag appeals his convictions and sentences for vehicular homicide/leaving the scene (count one), leaving the scene of a crash involving injury (counts two and three), and reckless driving with serious bodily injury (counts four and five). The trial court imposed a sentence of twenty years in prison on count one. The trial court imposed five years in prison on the remaining counts, concurrent with each other and consecutive to count one. Based on Haag’s double jeopardy argument, we reverse his convictions and sentences on counts two and three. We affirm without discussion the remaining convictions and sentences.

Haag contends that his conviction for vehicular homicide/leaving the scene pursuant to section 782.071(l)(b), Florida Statutes (2007), and his two convictions for leaving the scene of a crash involving injury pursuant to 316.027(l)(a), Florida Statutes (2007), violated double jeopardy principles and constituted fundamental error. The three counts at issue involve three different victims. In count one the victim was Kenneth Sapp, who died as a result of the crash that occurred on October 3, 2007. The victims in counts two and three, Corey Sapp and David Smith, sustained injuries as a result of that same crash.

Haag properly raises this double jeopardy argument on appeal. Absent waiver, a double jeopardy issue may be addressed for the first time on appeal because a double jeopardy violation constitutes fundamental error. See Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000). Nothing in our record indicates that Haag waived the double jeopardy claim in the trial court.

In Hunt, this court recognized that convictions for vehicular homicide/leaving the scene of an accident involving death under section 782.071(2), Florida Statutes (1997), and leaving the scene of an accident involving injury under section 316.027(1), Florida Statutes (1997), violated double jeopardy principles because Hunt left the scene of only one accident. 769 So.2d at 1111; see also Williams v. State, 732 So.2d 431, 432-33 (Fla. 2d DCA 1999) (determining that only one conviction for leaving the scene of an accident could stand because the defendant left the scene of only one accident); Waldecker v. State, 707 So.2d 777, 778 (Fla. 2d DCA 1998) (same). This court stated in Hunt that “[sjection 782.071 subsumes the requirement found in section 316.027 that the motorist stop and comply with the requirements of section 316.062, Florida Statutes (1997).” 769 So.2d at 1111. For purposes of the double jeopardy analysis, the 1997 statutes at issue in Hunt are the same in all pertinent respects as the 2007 version of the statutes that are applicable here.

The State relies upon McKnight v. State, 906 So.2d 368 (Fla. 5th DCA 2005), to support its position that the conviction for vehicular homicide/leaving the scene and the two convictions for leaving the scene of a crash involving injury do not violate double jeopardy principles. However, McKnight is distinguishable because there the issue was whether two convictions for vehicular homicide under section 782.071(1)(b) constituted a double jeopardy violation where the defendant fled and failed to give aid to the victims. Id. at 369. In rejecting McNight’s argument, the Fifth District recognized that it was not addressing convictions for leaving the scene of an accident under section 316.027 in addition to the vehicular homicide convictions. Id. at 373.

Here, because Haag’s two convictions for leaving the scene of a crash involving injury under section 316.027 are subsumed within the conviction for vehicular homicide/leaving the scene under section 782.071(l)(b), double jeopardy principles require that the two convictions under section 316.027 be reversed. See Hunt, 769 So.2d at 1111. Therefore, we reverse Haag’s convictions and five-year sentences on counts two and three for leaving the scene of a crash involving injury. We affirm his remaining convictions and sentences on counts one, four, and five.

Affirmed in part and reversed in part.

DAVIS and BLACK, JJ., Concur.

      . The crash resulted in the death of one person and injuries to two other individuals.


author: PER CURIAM.

text:
    AMERISURE INSURANCE COMPANY-FL, Appellant, v. MARTIN MEMORIAL MEDICAL and Department of Financial Services, Division of Workers’ Compensation, Appellee.
    No. 1D10-3794.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Rehearing Denied Aug. 24, 2011.
    Cindy R. Galen, Eraclides, Johns, Hall, Gelman, Johannessen, & Goodman, L.L.P., for Appellant.
    Mari McCully, Florida Department of Financial Services/Division of Workers’ Compensation, for Appellee.
   PER CURIAM.

Appellant, a workers’ compensation carrier, challenges a final order from the Workers’ Compensation Division of the Department for Financial Services (the Department). The order found that Appellant did not properly reimburse Appel-lee, a hospital, for its care of an injured employee. We hold the Department lacked "subject matter jurisdiction to rule on the Petition for Reimbursement as the medical benefits were denied based on the non-compensability of the worker’s heart condition. See § 440.13(11)(c), Fla. Stat. (2010) (providing the Department with exclusive jurisdiction over reimbursement disputes and overutilization); see also Westinghouse Elec. v. Widlan, 623 So.2d 511 (Fla. 1st DCA 1993) (holding a Judge of Compensation Claims (JCC) has jurisdiction over issues concerning compensa-bility); Carswell v. Broderick Constr., 583 So.2d 803 (Fla. 1st DCA 1991) (explaining the responsibilities and duties of the Department versus a JCC). Consequently, we REVERSE and REMAND to the Department for dismissal based on lack of subject matter jurisdiction.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    Daniel ENSIGN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-839.
    District Court of Appeal of Florida, Second District.
    July 20, 2011.

      James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   LENDERMAN, JOHN C., Associate Senior Judge.

Daniel Ensign appeals an order finding him guilty of indirect criminal contempt for interfering with a truancy court order requiring his stepdaughter to attend school every day. He contends that the trial court committed reversible error by failing to comply with several requirements of Florida Rule of Criminal Procedure 3.840. The State concedes error, and we reverse for further proceedings.

First, rule 3.840(d) provides in relevant part that “[t]he defendant is entitled to be represented by counsel.” At the hearing on the order to show cause for indirect criminal contempt, the trial court failed to advise Ensign of his right to counsel and Ensign did not knowingly waive his right to counsel. The trial court erred in this regard. See Ingram v. State, 933 So.2d 734, 735 (Fla. 2d DCA 2006).

Rule 3.840(g) also provides that prior to pronouncing sentence, “the judge shall inform the defendant of the accusation and judgment against the defendant and inquire as to whether the defendant has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances.” Ensign was not fully afforded these rights.

The trial court failed to comply with the requirements of rule 3.840(g) by failing to inform Ensign of the accusation against him and by failing to ask him if he has any cause to show why sentence should not be pronounced. In addition, while the trial court gave Ensign an opportunity to make a statement regarding whether he prevented his stepdaughter from attending school, the trial court failed to give him an opportunity to present mitigating evidence in regard to his sentence. See Gooden v. State, 931 So.2d 146, 147 (Fla. 1st DCA 2006); Mendana v. Mendana, 911 So.2d 130, 135 (Fla. 3d DCA 2005).

Rule 3.840(f) also requires a judgment of guilty to include “a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty.” The trial court’s snap out order failed to include the requisite recital of facts constituting the contempt. While oral statements placed on the record may satisfy this requirement of rule 3.840(f), see Gidden v. State, 613 So.2d 457, 460 (Fla.1993), the trial court failed to state on the record the facts supporting the trial court’s finding of contempt by Ensign. See Martinez v. State, 976 So.2d 1222,1223 (Fla. 4th DCA 2008) (‘While this requirement is waived when there are sufficient oral findings made on the record, the trial court failed to meet even this requirement.”).

Because the trial court failed to follow several requirements of rule 3.840, we reverse the order of contempt and remand for further proceedings consistent with rule 3.840.

Reversed and remanded.

WALLACE and LaROSE, JJ„ Concur.


text:
    Charles BERGMAN, Appellant, v. Deborah TRAFICANT-BERGMAN, Appellee.
    No. 4D09-4835.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Rehearing Denied Sept. 9, 2011.
    Charles Bergman, West Palm Beach, pro se.
    Ralph T. White of Schütz & White, LLP, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

MAY, C.J., WARNER and POLEN JJ„ concur.


author: SALTER, J.

text:
    Enrique TETTAMANTI and Maria Cristina Calvo, Appellants, v. OPCION SOCIEDAD ANONIMA, Appellee.
    No. 3D11-333.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.
    Dorta and Ortega, and Omar Ortega, Coral Gables, and Jessica Reyes, for appellants.
    Andrew C. Barnard, for appellee.
    Before RAMIREZ, SALTER, and EMAS, JJ.
   SALTER, J.

Enrique Tettamanti and Maria Cristina Calvo appeal a circuit court order denying their motion to vacate an earlier order granting recognition to an Argentine money judgment against them. Appellee, Op-cion S.A., was the plaintiff in Argentina (seeking collection of a promissory note issued by Tettamanti and Calvo) and is now the judgment creditor in both Argentina and Florida.

Tettamanti and Calvo previously and unsuccessfully appealed the order granting recognition to the final judgment entered in Argentina in 2007. While that appeal was pending, they obtained from the Florida circuit court a stay of enforcement of that final judgment. Opción appealed the stay, and we vacated it. In this third bite at the same apple, Tettamanti and Calvo moved the Florida circuit court to vacate the recognition judgment under Florida Rule of Civil Procedure 1.540 on the basis of a 2010 Argentine court order and letters rogatory (filed with the United States District Court for the Southern District of Florida) allegedly establishing that the underlying lawsuit in Argentina was not yet concluded. The Florida circuit court denied that motion, and this appeal followed. Analysis

As in the prior appeals involving these parties, Florida’s Uniform Out-of-Country Foreign Money-Judgment Recognition Act, sections 55.601-607, Florida Statutes (2008), is controlling. Recognition may be granted for a “judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine, or other penalty,” so long as the judgment is “final and conclusive and enforceable where rendered, even though an appeal therefrom is pending or is subject to appeal,” and provided the Florida court does not find grounds for nonrecognition under sections 55.605 or 55.6055.

Once recognition has been granted, the judgment is a Florida judgment and may be enforced in the same manner as any other Florida money judgment. The important distinction is that a post-recognition collateral attack on the judgment ordinarily should be directed to the foreign court rather than the Florida court. The collateral attacks presented by Tettamanti and Calvo in Florida in this most recent challenge claimed: (1) the Argentine judgment is not really final or enforceable in Argentina, based on more recent pronouncements by the Argentine court; (2) the judgments in both jurisdictions were based on fraud by Opción; and (8) the Florida judgment should not have converted the Argentine judgment debt from Argentine pesos to U.S. dollars at a rate of one to one.

Regarding the first of these arguments, the certified translations of the more recent court orders in Argentina and the letters rogatory issued by the court there do not instruct Opción to stop its Florida enforcement efforts. We appreciate the care a court in one country may take to avoid any inference of interference with the jurisdiction and discretion of a court in another country, but the same considerations of international comity do not in any way limit a presiding court’s power to control a litigant seeking relief before it. In the underlying case in Argentina, Opción is the plaintiff and judgment creditor. If it is the conclusion of the court in Argentina that Opción has no right to execute upon the Argentine judgment, or that the judgment there is not conclusive or final, the Argentine court can simply direct Opción to take no action in Florida to enforce the recognition judgment here. Alternatively, the Argentine court can issue a clear stay order and Tettamanti and Calvo can ask the Florida trial court to recognize that order as a matter of common law comity.

Tettamanti’s and Calvo’s second argument is that the Florida court should have vacated the recognition order based on fraud and misconduct by Opción. If the alleged fraud and misconduct consisted of forging or altering the judgment entered in Argentina in the course of seeking recognition in Florida, for example, a Florida court would certainly have authority to grant relief under Florida Rule of Civil Procedure 1.540(b). But in this case, Tet-tamanti and Calvo are attempting to re-raise issues (alleged payments to another entity for the account of Opción, for example) resolved adversely to them by the court in Argentina. Any attempt to vacate the findings on those points on the basis of alleged fraud should be directed to that court, not the Florida court.

Finally, Tettamanti and Calvo’s third argument — that the domesticated judgment should have been denominated in Argentine pesos rather than U.S. dollars — has already been adjudicated and rejected by this Court in the prior appeals. It is undisputed that the original indebtedness was incurred in U.S. dollars. The loan agreement required repayment in that currency. The Argentine judgment converted the debt from $236,900 to 236,-900 Argentine pesos because the then-prevailing and applicable conversion rate was one to one, as set forth in the Argentine judgment. In converting the recognized judgment into a Florida judgment, the circuit court properly restored the judgment debt to its original currency. As noted, this Court affirmed the order of recognition, including that provision, in 2009.

Conclusion

Tettamanti and Calvo have not raised any new argument or provided any definitive ruling by the Argentine court that precludes continued recognition and enforcement of the 2007 judgment in Florida. The Florida court is not a replacement or alternative forum for all post-judgment matters. In this case, proceedings to alter, amend, or vacate the judgment should be determined in the underlying case in Argentina.

Affirmed.

      . Tettamanti v. Opcion Sociedad Anonima, 23 So.3d 727 (Fla. 3d DCA 2009).

      . Tettamanti v. Opcion Sociedad Anonima, — So.3d - , 2009 WL 1212156 (Fla. 3d DCA 2009).

      . § 55.602(2), Fla. Stat. (2008).

      . § 55.603, Fla. Stat. (2008).

      . Such grounds include, for example: a foreign court's failure to provide impartial tribunals or due process; a lack of jurisdiction over the subject matter; fraud; and a judgment based on an underlying cause of action repugnant to the public policy of Florida.

      . In the present case, Tettamanti and Calvo also moved for an "interjudicial conference” by requesting leave to bring the presiding judge in the case in Argentina to Miami for a hearing. The circuit court agreed with Op-cion that there was no need for such a conference and that Opcion’s entitlement to recognition of the judgment in Florida was the law of the case. See Goodman v. Olsen, 365 So.2d 393, 396 (Fla. 3d DCA 1978). The concept of direct, verbal cross-border judicial dialogue is intriguing, but the practical barriers posed by simultaneous translation, differing legal systems, participation by lawyers for each party and each country, and the uncertain appellate remedies, are daunting.

      .A stay in Argentina pending an appeal of the existing judgment there is addressed by section 55.607 of the Recognition Act; that provision does not address a stay based on other considerations, such as a judicially-directed prior recourse to designated collateral before other execution is attempted.

      . Nahar v. Nahar, 656 So.2d 225, 229 (Fla. 3d DCA 1995).

      . As a practical matter, conversion of a foreign (international) judgment into U.S. dollars is appropriate. Collection in Florida through garnishment, execution, or other remedies is far more difficult when the garnishee or sheriff is asked to engage in currency conversions. Again, the court which entered the underlying judgment retains ultimate control to limit the total sum collected by the judgment creditor — in any and all countries in which collection occurs and net proceeds are applied to the original foreign judgment at the then-prevailing rates of exchange — to the judgment debt plus any applicable accruals or additions.


author: GERBER, J.

text:
    George W. TAYLOR, Appellant, v. Sherry B. TAYLOR, Appellee.
    No. 4D09-3358.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Rehearing Denied Aug. 26, 2011.
    Susan R. Brown, P.A., Hollywood, for appellant.
    William G. Crawford, Jr. of McDonald & Crawford, P.A., Fort Lauderdale, for ap-pellee.
   GERBER, J.

The former husband appeals the circuit court’s orders denying his motions for relief from a final judgment of dissolution and an order awarding personal property to the former wife. He argues that the wife did not rebut his sworn testimony that he did not receive any notice of the final hearing which led to the final judgment and the order. We agree with the husband and reverse.

The wife initiated this action by filing a petition for dissolution. After the husband did not timely answer the petition, the clerk entered a default against him. The wife’s lawyer later sent the husband a notice of final hearing on the petition. The wife’s lawyer certified that he sent the notice by mail to the marital residence as the husband’s last known address and to the husband’s e-mail address.

The husband did not appear at the final hearing. The circuit court entered a final judgment of dissolution which provided certain awards to the wife.

The wife later filed a motion to award her the husband’s interest in an airplane because the husband had not paid child support. The wife’s lawyer sent the husband a notice of hearing on the motion. The wife’s lawyer again certified that he sent the notice by mail to the marital residence as the husband’s last known address and to the husband’s e-mail address.

The husband did not appear at that hearing either. The circuit court entered an order awarding the husband’s interest in the airplane to the wife.

Seven months after the entry of the final judgment, and one month after the entry of the order awarding the husband’s interest in the airplane to the wife, the husband filed his motions for relief. The motions argued that the final judgment and the order were void because the husband did not receive notice of the final hearing on the petition. Although the husband did not cite the rule upon which he was relying in the motions, it appears that his motions fell under Florida Rule of Civil Procedure 1.540(b)(4) (2008), which states: “On motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... [because] the judgment ... is void[J”

The husband filed affidavits in support of the motions. In the affidavits, the husband alleged that he was a pilot based in Saudi Arabia. While he was home visiting, the wife served the petition for dissolution on him. After he left to return to Saudi Arabia, he called the wife to discuss the matter. She said that she would think about whether to go forward with the divorce.

The husband’s affidavits further alleged that four months later, the wife sent him an e-mail stating that her lawyer “has not been pushing any default proceedings.” The husband assumed that the proceedings were either dropped or stayed.

The husband’s affidavits further alleged that he never received any e-mail from the wife’s lawyer notifying him of the final hearing. According to the husband, the wife could have contacted him about the notice in five different ways: by mobile phone; by calling the phone at the address where he was staying in Saudi Arabia; by e-mail; by instant messaging; and by an emergency dispatch system which was capable of reaching him during flight anywhere in the world. However, the wife did not contact him.

The husband’s affidavits admitted that he received the e-mail from the wife’s lawyer notifying him of the hearing on the motion regarding the airplane. However, he alleged that he was unable to return by the hearing date. He alleged that he asked the wife’s lawyer to reschedule the hearing so that he could attend. But when he returned to Florida two days later, he learned that the wife’s lawyer went forward with the hearing without honoring his request.

The husband’s affidavits further alleged that when he returned, he asked the wife for his mail sent to the marital residence, but she told him to contact her lawyer. He spoke to the lawyer’s secretary, who said that she and the lawyer knew nothing about his mail. He then sent the lawyer a letter demanding production of his mail, but the letter went unanswered. He next attempted to subpoena the lawyer to produce proof that the e-mail regarding the final hearing was sent to him, but the lawyer did not do so.

The circuit court held a hearing on the husband’s motions. The husband, who was pro se at the time, argued consistent with his affidavits. The wife’s lawyer argued that he sent the notice of the final hearing to the husband at the marital residence as his last known address and by email. The wife’s lawyer then stated: “I have the e-mail if the court needs to see it.” The wife’s lawyer later stated: “If we have to take testimony, we can do it.”

Without responding to the wife’s lawyer’s offers, the circuit court asked the husband for rebuttal. The husband stated: “[I]f he has an e-mail showing that he did notify [me] of the final hearing, I would like to see the e-mail.” The wife’s lawyer did not then show the e-mail to the husband, nor did the court order the wife’s lawyer to do so. Later, when the husband requested to give testimony, the court put him under oath and had him affirm that everything he said to that point was truthful. The court did not put the wife’s lawyer under oath at any time. At the end of the hearing, the court orally denied the motions without stating any findings of fact or conclusions of law. The court later entered written orders denying the motions, but again without stating any findings of fact or conclusions of law.

The husband then filed this appeal. He argues that the wife did not rebut his sworn testimony that he did not receive any notice of the final hearing and, therefore, the circuit court erred by denying his motions for relief. We review the court’s orders for an abuse of discretion. Watson v. Watson, 583 So.2d 410, 411 (Fla. 4th DCA 1991).

We agree with the husband’s argument. The only basis upon which the circuit court could have denied the husband’s motion is if the court accepted the wife’s lawyer’s unsworn statements that he possessed an e-mail notifying the husband of the final hearing. However, “[u]nsworn statements cannot serve as the basis for a trial court’s factual determinations.” Arnold v. Arnold, 889 So.2d 215, 216 (Fla. 2d DCA 2004).

This case is similar to Arnold. There, the husband did not appear for the final hearing on the wife’s petition for dissolution. The trial court attempted to ascertain whether the husband received notice of the final hearing. The wife’s lawyer informed the court that she telephoned the husband’s former lawyer’s office and spoke with a paralegal, who indicated that she sent the husband a copy of the notice of trial. The court then contacted the husband by telephone. The husband told the court that he did not know about the hearing, he never received notice of the hearing, and he was working in a neighboring county and could not make it to the courthouse in time for the hearing. The husband then requested a continuance. The court denied the husband’s request for a continuance, specifically finding that “the paperwork was sent to him.” Id.

The second district concluded that the court’s finding was erroneous, reasoning:

Unsworn statements do not establish facts. In this case, the trial court improperly relied upon the unsworn statements allegedly made by [the husband’s former lawyer’s] paralegal, who repeated them to [the wife’s] counsel, who relayed them to the court, to determine that [the husband] had received notice of the final hearing. The “evidence” relied on by the trial court as the basis for denial of the continuance was not competent. The denial of [the husband’s] request for a continuance thus was an abuse of discretion.

Id. (internal brackets and citations omitted). This case is even stronger than Arnold because here, the husband provided sworn statements in support of his motions, whereas in Arnold the husband merely spoke to the court by telephone.

We reject the wife’s argument that we should affirm because the husband’s motions for relief failed to demonstrate excusable neglect, a meritorious defense, and due diligence. “It is well settled that a judgment entered without notice to a party is void.” Watson, 583 So.2d at 411 (citations omitted). “[R]elief from a void judgment pursuant to Rule 1.540(b) may be granted at any time.” Colon v. Colon, 45 So.3d 553, 554 (Fla. 4th DCA 2010).

We also reject the wife’s argument that we should affirm because the husband did not provide the court or the wife’s counsel with another address and did not have his mail forwarded to another address. The husband’s unrebutted sworn statements indicate that the wife led him to believe that she was not pursuing the dissolution. Thus, there was no need for him to provide another address or have his mail forwarded to another address. See Lanes v. Lanes, 454 So.2d 782, 782 (Fla. 4th DCA 1984) (the wife sustained her burden on motion for relief from judgment based on, among other things, the husband’s repeated assurances to her that he would not attempt to obtain a divorce).

We further reject the wife’s argument that we should affirm because her counsel mailed the notice of the final hearing to the marital residence as the husband’s last known address. See Fla. Fam. L.R.P. 12.080(c)(2) (“Notice of final hearings ... shall be served on defaulted parties in the manner provided for service of pleadings and papers contained in Florida Rule of Civil Procedure 1.080.”); Fla. R. Civ. P. 1.080(b) (notice may be made upon a party by, among other things, “mailing it to ... the party at the last known address.”). The husband’s unrebutted sworn statements indicate that his last known address was not the marital residence, but in Saudi Arabia, and the wife knew how to contact him there, but did not do so. See Greisel v. Gregg, 733 So.2d 1119, 1121-22 (Fla. 5th DCA 1999) (final judgment was void for lack of notice where the plaintiffs sent copies of motions and notices to the defendants’ post office box in Orlando but knew that the defendants were residing in Germany because that is where the plaintiffs served them).

In sum, the “[l]ack of proper notice that a party is applying to the court for a final judgment is a classic reason for setting a final judgment aside.” Weber v. Shea, 742 So.2d 443, 443 (Fla. 4th DCA 1999). Here, the husband provided sworn statements establishing that he did not receive proper notice of the final hearing, and the wife did not rebut that evidence with any sworn statements. Therefore, we reverse the final judgment and the order awarding the interest in the airplane to the wife. We remand for further proceedings consistent with this opinion.

Reversed and remanded.

STEVENSON and GROSS, JJ., concur.


author: CIKLIN, J.

text:
    Jessyca ROSSMAN, f/k/a Jessyca Ghuman-Profera, Appellant, v. Gino J. PROFERA, Appellee.
    No. 4D09-5242.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Aug. 24, 2011.

      Chet E. Weinbaum, Fort Pierce, for appellant.
    Jonathan Jay Kirschner of Jonathan Jay Kirschner, Esquire & Associates, LLC, Fort Pierce, and Leatha D. Mullins, Fort Pierce, for appellee.
   CIKLIN, J.

Jessyca Rossman, the mother, appeals the trial court’s order both denying her request to relocate to Texas and granting Gino Profera’s, the father’s, petition for modification of custody. We find that the trial court’s denial of the request to relocate was supported by substantial competent evidence. Further, we find that substantial competent evidence existed to grant the father’s petition for modification of custody because an unusual situation created a substantial change in circumstances sufficient to justify a change in custody. First, the prior final judgment of custody explicitly restricted the mother’s relocation out of Florida without permission from the father or the court. Second, despite this restriction, the mother had already relocated to Texas — without the minor child — by the time the final hearing on the relocation/modification matter occurred. And third, the mother made it clear that she would not be returning to Florida if the relocation was denied.

Background

After a four-year marriage, with a minor child, the mother and father were divorced on November 1, 2004. Pursuant to a mediated settlement agreement, the parties shared parental responsibility, and the mother was named the primary residential parent. The father was given visitation that consisted of alternating weekends, half the holidays, and several weeks in the summer. The final judgment expressly prohibited the mother from relocating with the minor child outside of Florida without permission from the father or the court. The parties entered into another mediated agreement on June 13, 2007, which was incorporated into an amended final judgment on June 17, 2007. This modification only slightly increased the father’s visitation time with the minor child.

On January 12, 2009, the mother served a notice of intent to relocate on the father. It stated that the mother and her new husband needed to move to Texas to accept job offers there. The father filed an objection to the notice of intent to relocate. On June 10, 2009, despite the relocation issue still pending with the trial court, the mother moved to Texas with her husband, their child, and the husband’s child. The mother left the minor child in the custody of the father in Florida while the relocation issue was pending before the trial court. The mother and her husband purchased a house in Texas and rented out their house in Florida.

On July 10, 2009, the father filed a supplemental petition for modification of residential responsibility, timesharing, and other relief, in which he requested the trial court designate him the primary residential parent. On July 30 and 31, 2009, the trial court held a hearing on the mother’s request to relocate and the father’s petition to modify custody.

The mother and her husband testified that they were offered new jobs with their current employers, essentially the same entity, and were told that if they did not move to Texas to accept the new jobs, they would be terminated at their Florida jobs. The mother testified that she and her husband accepted the jobs, moved to Texas, and purchased a house there. The mother conceded that the minor child maintained a close relationship with the father, who saw the minor child regularly, spoke to the minor child daily by telephone, participated as a coach for the minor child’s baseball team, and took the minor child fishing and camping.

The father testified that he relocated after the divorce to be close to the minor child. He and the minor child participated in many activities together and he sometimes even had lunch with the minor child at his school.

Importantly, during the hearing, both the mother and her attorney indicated to the trial court that she would not be leaving Texas, no matter how the trial court ruled. When asked during cross-examination what her “plan B” was if the trial court ruled that the minor child could not relocate to Texas, the mother said she and the minor child’s half-brother and stepbrother — already living in Texas — would be “devastated” but she would “try to make it work.” During closing argument, counsel for the mother stated, “Starting out, it sounded like a relocation case, and really it’s turned into you have the mom in Texas for sure. You have the dad here for sure, and so somebody is going to have a long distance relationship.” This was a clear indication to the trial court that the mother was unwilling to return to Florida, no matter how the court ruled on her relocation request.

At the conclusion of the hearing, the trial court orally denied the mother’s relocation request and granted the father’s petition for modification of custody. On November 25, 2009, the trial court issued a detailed written order containing numerous factual findings and reiterating the oral pronouncement issued at the conclusion of the hearing. The mother appeals.

Relocation

The mother argues that the trial court’s finding that her proposed timesharing arrangement would not allow the father to maintain a continuing meaningful relationship with the minor child was not supported by competent substantial evidence. We disagree.

This court reviews a trial court’s decision on a petition to relocate for an abuse of discretion. See Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003). This includes reviewing whether substantial competent evidence exists to support the trial court’s findings concerning the statutory factors. Id.

One of the statutory factors a trial court must consider when a party asks the court for permission to relocate is:

The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

§ 61.13001(7)(e), Fla. Stat. (2008) (emphasis added). Ultimately, the concern in a relocation determination is whether the relocation is in the best interests of the child. In fact, courts have held that relocation cannot be based solely upon a finding that it would serve the best interests of the custodial parent — not the minor child. See Fredman v. Fredman, 960 So.2d 52, 60-61 (Fla. 2d DCA 2007) (affirming the trial court’s denial of relocation because the evidence indicated that the relocation was in the mother’s best interest but not the minor child’s); Berrebbi v. Clarke, 870 So.2d 172, 173 (Fla. 2d DCA 2004) (reversing an order granting a relocation request because “[a]ny evidence regarding the benefits of relocation related to the Mother and her new husband” and there was no evidence that relocation would be good for the minor child); Kuntz v. Kuntz, 780 So.2d 1022, 1023 (Fla. 4th DCA 2001) (“[The relocation statute] imposes an intensely fact specific framework on the relocation decision, where the trial judge may base a decision on what is best for the child, even though a result may not be best for the primary residential parent seeking to relocate.” (citation and internal quotation marks omitted)).

The trial court found that the mother’s substitute timesharing arrangement would not allow the father to maintain a continuing meaningful relationship with the minor child and that the substitute arrangement was not in the minor child’s best interest. The mother proposed allowing the minor child, who was seven years old at the time of the hearing, to fly eleven unaccompanied round-trips per year between Texas and Florida to visit the father. The trial court found that this arrangement would “drastically limit the [father’s] active, ongoing participation in the child’s life, which is not in the best interests of the child.” The trial court’s finding was based upon both the father and mother’s testimony about the father’s extremely involved role in the minor child’s life, which the mother does not contest. Thus, we cannot say that the trial court’s finding that the substitute arrangement would substantially interfere with this relationship was not supported by substantial competent evidence. Because the mother only challenges the denial of relocation on these narrow grounds, we decline to analyze the trial court’s contemplation of the other statutory relocation factors and affirm the denial of the relocation request.

Modifícation of Custody

The mother challenges the change of primary custody from her to the father on two grounds: (1) that there was no evidence of a substantial change in circumstances or that a change in custody would be in the minor child’s best interest, and (2) that the trial court failed to include an express finding of a substantial change in circumstances in the order. We disagree that there was no evidence of a substantial change in circumstances or no evidence that a change of custody was in the minor child’s best interest; and we find that a substantial change in circumstances, while not explicitly stated in the order, is apparent from the unique circumstances of this case.

“A trial court may not modify custody or visitation unless the party moving for such modification demonstrates: (1) a substantial or material change in the circumstances of the parties since the entry of the custody and visitation order; and (2) that the welfare of the child will be promoted by a change in custody and visitation.” Botterbusch, 851 So.2d at 905 (citation and quotation marks omitted).

The mother’s argument here is that the trial court could not base a finding of a substantial change in circumstances on the mother’s relocation. Courts, including this court, have held that relocation alone does not constitute a substantial change in circumstances. See Ogilvie v. Ogilvie, 954 So.2d 698, 701 (Fla. 1st DCA 2007) (“ ‘[Cjourts have routinely held that relocation alone is not a substantial change in circumstances to support a modification of custody.’ ” (quoting Shafer v. Shafer, 898 So.2d 1058, 1055-56 (Fla. 4th DCA 2005))); Giangrande v. Henao, 898 So.2d 1104, 1106 (Fla. 2d DCA 2005) (“[The mother’s] move to a foreign country, without more, is not a substantial change of circumstances.”); Sotomayor v. Sotomayor, 891 So.2d 559, 561 (Fla. 2d DCA 2004) (“[A] custodial parent’s move to a foreign state, without more, is not a substantial change of circumstances that would support a modification of custody.”); Chapman v. Prevatt, 845 So.2d 976, 981 (Fla. 4th DCA 2003) (“The mother’s desire to relocate to Colorado, in the absence of other compelling circumstances, does not in and of itself support a change of custody.”).

A vital factor, however, distinguishes the instant case from the aforementioned cases: the mother had already relocated, despite a pending relocation request based upon the prior final judgment’s explicit restriction on relocation, and the mother did not intend to move back to Florida. The trial court’s denial of the relocation request, which we have already addressed and affirmed, properly denied the request to relocate with the minor child. This meant that the minor child would not be leaving Florida. However, the mother had already moved to Texas and was not returning. The end result was this: the minor child, who was not leaving Florida, lived in an entirely different state from the then-custodial parent, who was not moving back to Florida. Given this unique situation, the evidence clearly indicated that a substantial change in circumstances had occurred.

As for whether there was evidence that a change in custody would be in the minor child’s best interest, we find that there was. Both the mother and father agreed that the father had an active, ongoing relationship with the minor child. The trial court found “that the undisputed, clear and convincing evidence showed that the [father] maintains a strong and close bond and relationship with the child.” It was clearly in the best interest of the child, who was staying in Florida per the trial court’s denial of the request to relocate, to live with his father in Florida. It bears repeating that the mother made it clear she was not returning to Florida.

The mother further argues that the order should be reversed because it does not explicitly find that a substantial change in circumstances had occurred. Insofar as the order does not state the exact words, “substantial change in circumstances,” the mother is correct. However, we do not agree that a modification order without those exact words is per se reversible. Courts have stated that the noncustodial parent’s failure to plead a substantial change in circumstances coupled with the trial court’s failure to include an express finding of a substantial change in circumstances in its order constituted a reversible error. See Clark v. Clark, 35 So.3d 989, 991 (Fla. 5th DCA 2010) (“[T]he failure to plead and prove a substantial change of circumstances and the lack of appropriate findings in the order under review require reversal.”); Bon v. Rivera, 10 So.3d 193, 195 (Fla. 4th DCA 2009) (“[I]f the noncustodial parent fails to allege that a substantial and material change has occurred and the trial court fails to make a similar finding, the modification order should be reversed.” (quoting Bartolotta v. Bartolotta, 687 So.2d 1385, 1387 (Fla. 4th DCA 1997))). But see Moore v. Wilson, 16 So.3d 222, 224 (Fla. 5th DCA 2009) (noting that “the trial court failed to make the required express finding of a substantial change of circumstances” which is “not simply a formality”); Kilgore v. Kilgore, 729 So.2d 402, 405-07 (Fla. 1st DCA 1998) (stating initially that “[a] modification order should be reversed if the noncustodial parent fails to allege the occurrence of a substantial and material change of circumstances, and the trial court fails to make a finding to that effect” but ultimately concluding that the order was “deficient because the trial court failed to make an express finding of a substantial change of circumstances” and reversing).

Under the unique facts of this case, we find that the order’s lack of an express finding of a substantial change in circumstances was not a reversible error. Cf. Straney v. Floethe, 58 So.3d 374, 375 (Fla. 2d DCA 2011) (“In this case, the trial court did not make an express finding that a substantial, material, and unanticipated change in circumstances had occurred. The record does not permit us to conclude that such a finding is implicit in this order”). First, the father’s petition for modification explicitly pled a substantial change in circumstances and that a change in custody would be in the minor child’s best interest. Second, the trial court offered many pages of detailed factual findings in its order from which a substantial change in circumstances is apparent. Third, the record also supports the conclusion that a substantial change in circumstances occurred — the mother moved to Texas and was unwilling to return to Florida when the trial court denied the relocation request.

The mother raises a third issue in her appeal regarding the trial court’s findings as to her income. We have reviewed this issue thoroughly and affirm without further comment.

Based upon the unique circumstances of this case, we affirm the trial court’s order denying the mother’s request to relocate and granting the father’s petition for modification.

Affirmed.

GROSS and HAZOURI, JJ., concur.

      . It is worth noting that the trial court found in its order that the mother’s move to Texas, while without the court’s permission, was not in bad faith. We have found no reason to doubt this conclusion.


author: GROSS, J.

text:
    Joshua ADERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2074.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      Brian H. Mallonee, Fort Pierce, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Does an officer have reasonable suspicion to effect a traffic stop when he conducts a computer check of a car’s tag and learns that the tag is registered to the same make of car, but to one of a different color? We agree with courts in Indiana and Georgia and hold that under these circumstances an officer may lawfully make a traffic stop under the Fourth Amendment of the United States Constitution.

The facts leading up to the traffic stop in this case are undisputed. At about 1:00 a.m. on a Friday night, Deputy Jason Pickering observed a black two-door Honda. He learned that the Honda’s color did not match the color reported on a law enforcement database, which indicated that the Honda should have been light-blue. Deputy Pickering activated his blue lights and stopped the Honda. The deputy explained his reason for making the stop. “[Tjhat struck me as odd,” the deputy stated. “I didn’t know if that tag might not belong to that car or it could have been possibly a stolen vehicle I didn’t know.”

The only occupant in the vehicle was Joshua Aders. He gave Deputy Pickering his vehicle registration and insurance information, which also described the car as light blue. However, the VIN on the car and registration matched. Aders told Deputy Pickering that he had spray painted the car when he bought it but had not yet changed the color on the registration. Deputy Pickering handed back Aders’ license, registration, and insurance information, gave him a warning, and told him he was free to leave. Before Aders left the scene, however, the deputy requested his consent to search the car. Aders consented and volunteered that he had drug paraphernalia in the car’s center console. The deputy’s search also uncovered marijuana and pills.

In the circuit court, Aders challenged the traffic stop, arguing that the deputy did not have a reasonable, articulable suspicion to justify an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The circuit court ruled that the deputy was justified in making the stop to determine if the license plate was attached to the correct vehicle; the court explained that

[i]t is reasonable for a law enforcement officer to conclude that a registration plate affixed to a vehicle which differs in color from the vehicle described on the registration information from the Florida Department of Highway Safety, Motor Vehicles Division, even if the make and Model are the same or similar, warrants further investigation.

Given the undisputed facts, this case presents a legal issue — the constitutionality of a traffic stop — so the standard of review is de novo.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision.” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). Accordingly, the stop must be reasonable for it to comport with the Fourth Amendment. Id. at 810.

“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Id. (citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). “Probable cause exists where the totality of the facts known to the officer at the time would cause a reasonable person to believe that an offense has been committed.” State v. Hebert, 8 So.3d 393, 395 (Fla. 4th DCA 2009) (citing State v. Walker, 991 So.2d 928, 931 (Fla. 2d DCA 2008)). At the very least, an officer must have an articulable and reasonable suspicion that the driver violated, is violating, or is about to violate a traffic law. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Prouse, 440 U.S. at 654 & n. 11, 661, 663, 99 S.Ct. 1391.

In arguing that the traffic stop was invalid, Aders contends there could be no reasonable suspicion he violated state law if Deputy Pickering’s sole reason was that the car’s color did not match the color listed in state records, especially, he asserts, where there is no legal requirement that a driver notify the state of color changes. While the statutory and regulatory framework bears out the truth of Aders’ assertion, we nonetheless agree with those courts from other states holding that a color discrepancy between a car and its computer registration creates sufficient reasonable suspicion to justify a traffic stop for further investigation.

Subsection 320.02(1), Florida Statutes (2010), requires an owner to register a vehicle that is “operated or driven on the roads of this state” and the owner “shall apply to the department” for registration “on a form prescribed by the department.” Florida Administrative Code Rule 15-1.016 lists forms utilized by the Division of Motor Vehicles; there is no form for an owner to report a new paint job to the Department. At least one form includes a space for the color as part of the information about a vehicle, but the purpose of the form is not for reporting a change in col- or. Resort to the Florida Vehicle Registration that every driver must carry suggests that a registration may be renewed without having to note a change of color of a vehicle. The state has not and could not cite to a regulation or statute that Aders violated by failing to notify the department that he had painted his blue car black.

But, Deputy Pickering suspected Aders of improperly transferring a license plate, which is a second-degree misdemeanor under section 320.261, Florida Statutes (2010). A color discrepancy is enough to create a reasonable suspicion in the mind of a law enforcement officer of the violation of this criminal law. For example, in Smith v. State, a trooper “initiated [a] traffic stop because a computer check on the vehicle’s license plate revealed that the plate was registered to a yellow Oldsmobile rather than a blue and white one.” 713 N.E.2d 338, 341 (Ind.Ct.App.1999). After the stop, the trooper discovered that the car belonged to the passenger, “who had painted it a different color, which explained the apparently mismatched license plate.” Id. The Indiana court held that the investigatory stop of the vehicle “was valid and supported by reasonable suspicion.” Id. at 342. Similarly, in Andrews v. State, the court found reasonable suspicion to exist where an officer observed a greenish-gold car that a computer check revealed to be registered as silver in color; the court concluded that it was reasonable for the officer “to infer that the license plate may have been switched from another car.” 289 Ga.App. 679, 658 S.E.2d 126, 127-28 (2008). Applying Smith and An drews to this case, we affirm the circuit court’s denial of the motion to suppress.

We acknowledge the case upon which Aders relies, Commonwealth v. Mason, 2010 WL 768721 (Va.Ct.App. Mar.9, 2010), which on similar facts held that a traffic stop violated the Fourth Amendment. The court in that case appeared to focus on the deputy’s subjective intent in making the stop, rather than on an objective evaluation of the facts. “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” so whether a stop is a pretext is irrelevant as long as it is otherwise justified. Whren, 517 U.S. at 811-13, 116 S.Ct. 1769.

Affirmed.

STEVENSON and GERBER, JJ„ concur.

      . In the trial court, Aders did not challenge his consent to the search.

      . See also United States v. Harris, 526 F.3d 1334, 1337-38 (11th Cir.2008) ("A traffic stop, however, is constitutional if it is either based upon probable cause to believe a traffic violation has occurred or justified by reasonable suspicion in accordance with Terry [v. Ohio], 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 [(1968)].” (citation omitted)); United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) ("[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” (footnote omitted)) (en banc).

      . For example, the HSMV 82100 form is an affidavit for "Change/Alteration” of body, but it refers to the body of the vehicle and not its color. See Fla. Dep’t of Highway Safety & Motor Vehicles (DHSMV), Affidavit for Change/Alteration of Body, HSMV 82100 (Rev.5/01), http://www.flhsmv.gov/dmv/forms/ BTR/82100.pdf (last visited July 19, 2011).

      . See, e.g., DHSMV, Application for Replacement License Plate, Validation Decal or Parking Permit, HSMV 83146 (Rev.06/11) S, http://www.flhsmv.gov/dmv/forms/BTR/83146. pdf (last visited July 19, 2011).

      . In pertinent part, that statute provides:
      Any person who knowingly attaches to any motor vehicle ... any registration license plate, ... which plate ... was not issued and assigned or lawfully transferred to such vehicle, is guilty of a misdemeanor of the second degree....
      § 320.261.

      . This case is distinguishable from United States v. Clarke, 881 F.Supp. 115, 116 (D.Del.1995), where there were facts other than the color discrepancy that supported the traffic stop; for example, the car was seen in a high crime area that had "a large number of stolen vehicles,” the tag was from a state with high incidence of stolen vehicles, and the car was a model that was "commonly stolen.”


author: SUAREZ, J.

text:
    The STATE of Florida, Appellant, v. D.R., a juvenile, Appellee.
    No. 3D10-2479.
    District Court of Appeal of Florida, Third District.
    July 27, 2011.
    Rehearing Denied Aug. 23, 2011.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Courtney A. Deblis and Kathryn M. Winkler, Certified Legal Interns, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   SUAREZ, J.

The State of Florida appeals from an order granting D.R.’s motion to suppress. We reverse and remand for a new suppression hearing.

In reviewing a trial court’s ruling on a motion to suppress, the appellate courts defer to the trial court’s factual findings so long as the findings are supported by competent, substantial evidence, and review de novo the legal question of whether there was probable cause given the totality of the factual circumstances. Twilegar v. State, 42 So.3d 177, 192 (Fla.2010). Having reviewed the evidence presented at the hearing on D.R.’s motion to suppress, we conclude that the trial court’s order granting the motion to suppress relied upon an incorrect sequence of events. The order correctly states that the car D.R. was riding in was stopped because it matched a BOLO description and the purpose of the stop was to wait for the victim to arrive for a possible I.D. The order incorrectly states that the officers searched D.R. after the victim showed up and failed to identify the car occupants as her assailants. But the historical sequence of events in the record is established by the officers’ testimony. That evidence shows that D.R. had been arrested for possessing a concealed firearm in his boot before the victim showed up to identify suspects; at the point D.R. was asked to remove his boot, the initial purpose of the investigatory stop was ongoing and had not yet been resolved.

Although the trial court is correct about the legal principle involved, it based its decision on a line of cases that are factually distinguishable. Those cases hold that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Cresswell v. State, 564 So.2d 480, 481 (Fla.1990) (holding that a traffic stop may last no longer than the time it takes to write a citation); McNichols v. State, 899 So.2d 1197 (Fla. 5th DCA 2005) (holding that once a police officer has totally satisfied the purpose for which he has initially stopped and detained the motorist, the officer no longer has any reasonable grounds or legal basis for continuing the detention). The facts of D.R.’s case reveal that the officers were not yet finished with the investigatory stop when D.R. aroused the officers’ suspicion by his behavior.

There is clear error in the historical facts relied upon by the trial court in the order granting the motion to suppress. If the purpose of the BOLO stop was met prior to D.R. being searched, then the detention had ended and any further search was illegal: If, however, the purpose of the BOLO stop was not yet achieved, then the detention was ongoing and the search was not illegal if based on reasonable suspicion. See Cresswell, 564 So.2d at 482 (“In determining whether an officer had reasonable suspicion in any given case, the totality of the circumstances— the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”); see also State v. Hankerson, 65 So.3d 502 (Fla.2011) (discussing probable cause in light of the factual circumstances coupled with the officer’s experience and knowledge); State v. Betz, 815 So.2d 627, 633 (Fla.2002) (holding that law enforcement officers have probable cause to search where the facts and circumstances within their knowledge and experience are sufficient to warrant their reasonable belief that an offense has or is being committed.); McNichols, 899 So.2d at 1199.

We reverse the order granting the defendant’s motion to suppress and remand for a new hearing to determine whether, given the officers’ experience and observations, they had reasonable suspicion to search D.R. during the context of an ongoing detention.

Reversed and remanded for further proceedings.


text:
    Miranda DECKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-631.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Aug. 24, 2011.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals her convictions for official misconduct and falsifying records. We find the trial court did not abuse its discretion in denying appellant’s motion for a statement of particulars, because the motion essentially asked the state to prove its entire case before trial, and appellant failed to demonstrate a lack of notice, prejudice, surprise, or an inability to prepare an adequate defense. See Brown v. State, 473 So.2d 1260 (Fla.1985); Harrison v. State, 557 So.2d 151 (Fla. 4th DCA 1990). However, we find that appellant’s dual convictions -violate her constitutional protection against double jeopardy, as both offenses arose out of the same factual event, and each offense does not contain a separate element not contained within the other. See § 775.021(4)(a), Fla. Stat. (2011); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). As such, we reverse and remand for the trial court to vacate appellant’s conviction and sentence for falsifying records.

Affirmed in part, reversed in part, and remanded.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.