author: EVANDER, J.

text:
    Thomas SANFELIZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-966.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2011.

      Robert Wesley, Public Defender, and Jason Andrew Breslin, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   EVANDER, J.

Sanfeliz petitions the court for a writ of mandamus to compel the lower court to schedule a competency hearing. We treat Sanfeliz’s petition as a petition for writ of certiorari. See Carrion v. State, 859 So.2d 563 (Fla. 5th DCA 2003) (where evidence presented entitled defendant to competency hearing, failure to hold hearing deprived defendant of due process rights; writ of certiorari was appropriate remedy). We grant the petition. Based on the facts presented, we conclude that the trial court was required to hold a competency hearing.

In October 2010, Sanfeliz was arrested for battery on a law enforcement officer and resisting an officer with violence. The alleged criminal acts occurred while deputies were taking Sanfeliz into custody for an involuntary examination pursuant to the Florida Mental Health Act (commonly referred to as the “Baker Act”). See § 394.451-.4789, Fla. Stat. (2010).

Defense counsel developed concerns that Sanfeliz was incompetent to proceed and retained two doctors to perform confidential mental examinations of the defendant. The doctors were on the Ninth Circuit Court’s list of approved expert forensic evaluators. Both doctors concluded that Sanfeliz was incompetent to proceed.

Defense counsel furnished the trial court and the prosecutor with copies of the doctors’ reports, filed a “Notice that Defense Counsel has Reasonable Grounds to Believe Defendant is Incompetent to Proceed” and, ultimately, requested a competency hearing.

The State refused to stipulate that San-feliz was incompetent and objected to the reliability of the doctors’ reports because of a lack of opportunity to be present at the examinations and/or to present information to the doctors. The State argued that the defendant was not entitled to a competency hearing unless defense counsel first requested the appointment of experts.

Defense counsel insisted that the notice provided was sufficient to trigger the trial court’s responsibility under Rule 3.210(b), Florida Rules of Criminal Procedure, to hold a competency hearing within 20 days. That rule provides in part:

If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing. Attorneys for the state and the defendant may be present at any examination ordered by the court.

Defense counsel refused to file a motion to appoint experts, indicating his intent to rely on the two doctors previously retained. The State also refused to move for the appointment of experts, arguing that it had no reasonable grounds to believe that the defendant was incompetent.

The trial court refused to sua sponte appoint an expert and declined to adopt the findings of the defendant’s retained experts because their examinations were conducted without the opportunity for input from, or observation by, the State. The trial court determined that unless defense counsel specifically requested the appointment of experts, it was not required to hold a competency hearing. When defense counsel again refused to do so, the trial court struck defendant’s motion requesting a competency hearing.

Where a trial court is presented with reasonable grounds to believe that a defendant is incompetent to proceed, it must order a competency hearing. Maxwell v. State, 974 So.2d 505, 510 (Fla. 5th DCA 2008); see also Mairena v. State, 6 So.Bd 80, 85 (Fla. 5th DCA 2009); Cochran v. State, 925 So.2d 370, 372-73 (Fla. 5th DCA 2006); Carrion v. State, 859 So.2d at 565.

Here, the record reflects that the trial court recognized the existence of reasonable grounds to believe that Sanfeliz was mentally incompetent. The trial court observed that Sanfeliz was arrested when he was being taken into custody under the Baker Act, and that two doctors, recognized by the Ninth Circuit Court as expert forensic evaluators, had opined that San-feliz was incompetent to proceed. The basis of the trial court’s refusal to hold a competency hearing was the mistaken belief that defense counsel was required to move for an appointment of experts.

The first clause of the first sentence of Rule 3.210(b) addresses a court’s obligation to hold a competency hearing and expressly provides that if a judge “has reasonable ground to believe that the defendant is not mentally competent to proceed,” the court shall immediately schedule a hearing to determine the defendant’s competency. See also Caraballo v. State, 39 So.3d 1234, 1252 (Fla.2010). The sentence’s last clause addresses the appointment of experts, and provides that upon scheduling the competency hearing, the court “may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing.” Thus, pursuant to the express language of the rule, the trial court’s obligation to hold a competency hearing is not dependent on defense counsel’s filing of a motion to appoint experts.

At the hearing below, the State expressed frustration that the defendant was utilizing a procedure whereby the State was not afforded the opportunity to be present at the defendant’s examination. However, the State did not have the right to be present at the confidential examinations scheduled by defense counsel. Rule 3.210(b) provides that “[attorneys for the state and the defendant may be present at any examination ordered by the court.” (emphasis added). The State may, of course, argue that the testimony of the experts retained by defense counsel should be given less weight where they conducted their examination without input from, or observation by, the State.

PETITION GRANTED.

ORFINGER and TORPY, JJ., concur.


source: Caselaw Access Project

author: WOLF, J.

license: Public Domain

text:
    C.J. and E.J., In the Interest of D.K.R., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5174.
    District Court of Appeal of Florida, First District.
    April 13, 2011.

      Gary Baker, Callahan, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; and Jody Greene, Yulee, for Ap-pellee.
   WOLF, J.

Appellants seek review of an order granting appellee’s unsworn Motion to Dismiss appellants’ Petition for Dependency. We reverse because the factual allegations contained within the four corners of the pleading, when construed in favor of appellants, are legally sufficient to prove dependency pursuant to section 39.01(15), Florida Statutes (2010). See Dep’t of Children & Families v. R.V., 917 So.2d 334 (Fla. 5th DCA 2005) (noting that motions to dismiss filed pursuant to Florida Rule of Juvenile Procedure 8.235(b) are akin to motions to dismiss for failure to state a cause of action in civil proceedings); Locker v. United Pharm. Group, Inc., 46 So.3d 1126, 1128 (Fla. 1st DCA 2010) (noting that a trial court must accept all factual allegations in the four corners of an initial pleading as true and must construe those facts in a manner favorable to the filing party when considering a motion to dismiss); C.J. v. Dep’t of Children & Families, 756 So.2d 1108, 1110 (Fla. 3d DCA 2000) (finding Guardian Ad Litem’s report was inadmissible hearsay).

REVERSED.

PADOVANO and ROWE, JJ., concur.

       Had the motion to dismiss been sworn and filed pursuant to Florida Rule of Juvenile Procedure 8.235(c), the actions of the trial court may have been justified. It appears, however, the trial court made factual findings based on unsworn allegations.


author: PER CURIAM.

text:
    L.A.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5873.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

L.A.G. pleaded no contest to selling marijuana within 1000 feet of a school, possession of marijuana with intent to sell, possession of oxycodone, and possession of drug paraphernalia. The Department of Juvenile Justice (DJJ) recommended a probationary sentence. The juvenile court committed L.A.G. to a moderate risk program instead of placing her on probation. On appeal, L.A.G. challenges the disposition but not the adjudication of delinquency. The State properly concedes error. Because the juvenile court departed upward from the DJJ’s recommended disposition without providing adequate reasons for the restrictiveness level imposed, we reverse the disposition. See E.A.R. v. State, 4 So.3d 614 (Fla.2009); N.P. v. State, 18 So.3d 735 (Fla. 2d DCA 2009). We affirm the adjudication of delinquency.

The reasons offered by the juvenile court for departing upward from the DJJ’s recommendation focused on the nature of the charges against L.A.G. As this court has previously explained, “the ‘nature of the charge’ is not a sufficient reason to depart from the D.J.J.’s recommendation.” A.J.V. v. State, 842 So.2d 1027, 1029 (Fla. 2d DCA 2003) (citing K.M.T. v. State, 695 So.2d 1309, 1310 (Fla. 2d DCA 1997)). On remand, the trial court shall not depart from the DJJ’s recommendation unless it can “logically and persuasively explain why, in light of [the] differing characteristics [of the various restrictiveness levels], one level is better suited to serving both the rehabilitative needs of [L.A.G.] — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.” E.A.R., 4 So.3d at 638.

It is not clear from the record whether this error can be corrected on remand or whether the disposition has been fully served. On remand, L.A.G. is entitled to request a new disposition hearing if such a hearing will benefit this juvenile.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, DAVIS, and WALLACE, JJ., Concur.


author: LaROSE, Judge.

text:
    Juan DE LA FUENTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2394.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Juan De la Fuente appeals his conviction and sentence for felony battery. See § 784.041, Fla. Stat. (2007). We affirm, except for certain costs items, the judgment and sentence. We write to address costs challenged by Mr. De la Fuente. He filed a timely motion to correct sentencing error. See Fla. R.CrJm. P. 3.800(b)(2). Mr. De la Fuente alleged that the following statutory authorities listed in the trial court’s order imposing costs were outdated:

1) Section 960.20, Florida Statutes, Crimes Compensation Trust Fund;
2) Section 943.25(3), Florida Statutes, Criminal Justice Trust Fund;
3) Section 943.25(13), Florida Statutes,
• Criminal Justice Education by Municipalities and Counties;
4) Section 27.3455, Florida Statutes, Local Government Criminal Justice Trust Fund;
5) Section 939.01, Florida Statutes, Prosecution/Investigative Costs; and
6) Section 318.18(13)(a), Florida Statutes, Court Facilities.

He argues that because the costs were imposed without proper statutory authority, they must be stricken. See Perdue v. State, 17 So.3d 1283 (Fla. 2d DCA 2009). We agree. The correct statutory authorities are as follows:

1) Section 938.03, Florida Statutes (2007), Crimes Compensation Trust Fund;
2) Section 938.01(1), Additional Court Cost Clearing Trust Fund;
3) Section 938.15, Criminal Justice Education for Local Government;
4) Section 938.05(l)(a), Additional Court Costs for Felonies;
5) Section 938.27(1), Judgment for Costs on Conviction; (includes prosecution/investigative costs); and
6) Section 939.185(l)(a), Florida Statutes (2007), Assessment of Additional Court Costs and Surcharges.

The statutory authorities for the Domestic Violence Trust Fund and Rape Crisis Program Trust Fund surcharges, listed on the costs order as “Other” and citing no statutes, are sections 938.08 and 938.085, respectively.

The trial court issued an order granting Mr. De la Fuente’s motion and modified sentencing to cite the correct statutory authority, but not within sixty days as rule 3.800(b)(2) requires. Because the order was not entered timely, it is a nullity and the motion is deemed denied. See Fla. R.Crim. P. 3.800(b)(2); Whitmore v. State, 910 So.2d 308, 308 (Fla. 2d DCA 2005) (citing O’Neill v. State, 841 So.2d 629 (Fla. 2d DCA 2003)). However, Mr. De la Fuente properly preserved the issue for our review. See McGuire v. State, 779 So.2d 571, 573 (Fla. 2d DCA 2001) (explaining that rule 3.800(b)(2) provision deeming motion denied if trial judge does not rule within sixty days allows defendant to preserve alleged sentencing error for appellate review). We reverse and remand for entry of a corrected costs order.

Affirmed in part, reversed in part, and remanded.

CRENSHAW and MORRIS, JJ., Concur.


text:
    Edwin R. JONAS, III, Appellant, v. Nancy GOLD, individually, and Linda B. Jonas, individually and as trustee of a constructive trust, Appellees.
    No. 4D09-4386.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2011.
    Roderick V. Hannah of Hannah & Jan-kowski, Plantation, for appellant.
    Eric C. Christu of Ruden McClosky, P.A., West Palm Beach, for appellee, Nancy Gold.
   PER CURIAM.

Affirmed. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).

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


text:
    Philip LEIGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1032.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2011.

      Philip Leigh, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Philip Leigh (Defendant) appeals from an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse only as to the eighth ground raised in his motion, and affirm without discussion as to his other grounds for relief.

Following a jury trial, Defendant was found guilty of trafficking in cocaine and conspiracy to traffic in the same quantity of cocaine. In his timely rule 3.850 motion for postconviction relief, he raised eleven grounds for relief. The trial court summarily denied the motion and Defendant appealed.

In his eighth ground, Defendant claimed his trial counsel was ineffective for allowing him to appear in a leg restraint and for failing to object to the presence of a dog. He alleged that the jury was aware he was wearing some sort of leg restraint; it was supposed to be concealed under his trousers, but its size and bulk made concealment impossible; it marked him as a dangerous character, affecting his presumption of innocence.

Furthermore, the jury was aware of the presence of a dog in the courtroom because, on more than one occasion, the presiding judge, the Honorable Susan Lebow, had to correct her dog, which was whining and barking, and on more than one occasion, the dog put its front paws on the swing door that separated it from the courtroom where the judge was presiding, suggesting to the jury that the dog was present for the safety of the court, unnecessarily marking Defendant as a dangerous character.

“Allowing a defendant to appear before the jury in restraint devices is an inherently prejudicial practice that undermines the presumption of innocence and the right to a fair trial.” Miller v. State, 852 So.2d 904, 905 (Fla. 4th DCA 2003) (reversing summary denial of postconviction motion with respect to defendant’s claim that his trial counsel had been ineffective for failing to object to his appearing before the jury in restraint devices, which were obvious to at least one witness, and remanding for an evidentiary hearing or the attachment of portions of the record that conclusively refuted the claim); Jensen v. State, 964 So.2d 812 (Fla. 4th DCA 2007) (reversing summary denial of a post-conviction claim that defense counsel was ineffective for allowing the movant to appear in prison attire and in failing to object to the movant’s appearing before the jury in leg shackles which the jury actually saw and heard).

In its response below, the State recommended denial of this ground because, while there was discussion outside the jury’s presence about Defendant’s being “leg shackled,” and his need to move about the courtroom to view the playing of the tapes, there was no other mention about his moving through the courtroom or the jury being present, and Defendant had not cited to any specific section of the transcript clearly supporting his claim, nor was there anything in the record which showed a dog was in the courtroom.

Of course, as Defendant properly argues in his initial brief, it was the State’s obligation to refute his allegations, not his obligation to point to support for his position in the record. If a rule 3.850 motion is facially sufficient, setting forth a cognizable claim for relief, the claim may be denied if the record conclusively refutes the claim; if the claim is denied on this basis, then the trial court must attach to its order of denial those portions of the record that conclusively refute the alleged claim. If the claim is not refuted by the record, and has not been procedurally barred, then the trial court should order an evidentiary hearing. Fla. R.Crim. P. 3.850(d).

Accordingly, the summary denial of Defendant’s eighth ground for relief is reversed and remanded for the attachment of portions of the record conclusively refuting this ground or for an evidentiary hearing.

Affirmed in part, Reversed in part, and Remanded.

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


text:
    William E. BRATHWAITE, Husband, Appellant, v. Annette BRATHWAITE, Wife, Appellee.
    No. 1D10-5352.
    District Court of Appeal of Florida, First District.
    April 14, 2011.

      Nick James, and Brian P. North, Fleming Island, for Appellant.
    Jodi Seitlin, of The Seitlin Law Firm, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant, the Former Husband, seeks review of a Final Judgment of Dissolution of Marriage and challenges the award of permanent periodic alimony to Appellee, the Former Wife, as well as the distribution of his military retirement benefits. We agree with the Former Husband that the trial court erred in distributing the Former Husband’s military retirement benefits and also in calculating the income and expenses of each party. Accordingly, we reverse both the distribution of the retirement benefits and the alimony award and remand for reconsideration.

The parties were married in Virginia in 1995 while the Former Husband was serving in the Navy. Three years after the marriage, the Former Husband retired from the Navy, and the parties later moved to Florida. In January 2009, the Former Husband filed a petition for dissolution of the parties’ marriage. The Former Wife filed an answer and counter-petition, and, after a trial, the trial court issued a final order dissolving the marriage. In the final order of dissolution, the trial court awarded the Former Wife one-half of the Former Husband’s military retirement benefits and $700 monthly in permanent periodic alimony. The court also ordered the Former Husband to pay the mortgage on the marital residence where the parties would both reside until the home sold.

The court found that the Former Wife presented competent substantial evidence of her need for alimony and that the Former Husband had the ability to pay some “but not much because of the difficult economic circumstances of the economy and his independent contractor’s type of work in the slow construction industry.” The court also found that the Former Husband’s retirement was accrued during the marriage and is 100% marital. In evaluating the Former Husband’s income and the Former Wife’s need for alimony, the court noted that the Former Wife was entitled to “about $634.00” of the Former Husband’s military benefits, which is approximately half of the amount the Former Husband testified to receiving monthly in benefits. Additionally, the court found:

As an equitable distribution of marital assets, the Wife shall be entitled to fifty percent (50%) of the present value (without consideration of a penalty for early retirement) of the marital portion of the Husband’s Navy Retirement. See Boyett v. Boyett, 703 So.2d 451 (Fla.1997). The parties were married on March 16, 1995. Subject to Boyett, the Plan Administrator’s approved Qualified Domestic Relations Order shall be used.

With regard to the retirement benefits, the Former Husband argues that the trial court erred in finding that his entire military retirement is a marital asset and awarding 50% of the benefit to the Former Wife because a portion of the benefits accrued before the parties’ marriage. We agree with the Former Husband’s contention that the award was improper.

Section 61.076(1), Florida Statutes, states, “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” An asset is marital if it is “acquired during the marriage, created or produced by the work efforts, services, or earnings of one or both spouses.” Witowski v. Witowski, 758 So.2d 1181, 1185 (Fla. 2d DCA 2000) (citation omitted).

“Premarital contributions to retirement pensions should be excluded when distributing marital assets.” Livingston v. Livingston, 633 So.2d 1162, 1164 (Fla. 1st DCA 1994). In distributing the value of a retirement pension fund upon dissolution of marriage, the party not in ownership of the fund is entitled to an equitable distribution of that portion attributable to the marital contributions. Witowski, 758 So.2d at 1186 (citing § 61.075, Fla. Stat.); Downey v. Downey, 843 So.2d 932, 933 (Fla. 4th DCA 2003) (“[Ojnly the marital portion of the pension may be equitably distributed.”) (citations omitted).

The final order is internally inconsistent with respect to the Former Husband’s retirement benefits. The court acknowledged the date of the parties’ marriage and referenced Boyett, in which the Florida Supreme Court determined that contributions to the former husband’s retirement plan made after dissolution of the Boyett’s marriage should be excluded from the value of the former wife’s interest in the plan. However, as evidenced by the trial court’s factual findings, the court clearly contemplated that the Former Wife would receive half of the total value of the Former Husband’s retirement benefits. While the portion of the Former Husband’s retirement that was accrued during the marriage is a marital asset subject to equitable distribution, the portion of the Former Husband’s retirement accrued before the parties’ marriage should have been allocated to the Former Husband as a non-marital asset. Downey, 843 So.2d at 932 (citing Blythe v. Blythe, 592 So.2d 353 (Fla. 4th DCA 1992)). Therefore, the trial court erred in awarding the Former Wife half of the Former Husband’s total retirement benefits.

Regarding the alimony award, the trial court erred in considering the mortgage payment on the marital home as part of the Former Wife’s expenses in the alimony determination because the parties were sharing the marital home until it could be sold and the Former Husband was ordered to make the mortgage payments. Thus, the court’s calculation as to the Former Wife’s expenses in the alimony determination was artificially inflated. This error was not harmless because the $1,200 mortgage payment listed as an expense on the Former Wife’s second amended financial affidavit made up a significant portion of the approximately $3,200 deficit shown on the affidavit. This deficit served as part of the trial court’s basis for finding the Former Wife in need of alimony as well as the court’s determination as to the amount of the award. In light of this error in determining the Former Wife’s expenses and the award of half of the Former Husband’s monthly retirement payment, we reverse the alimony award and remand for reconsideration based on the factors found in section 61.08(2), Florida Statutes.

Finally, when laying out the facts of the case in the final order, the trial court stated that the parties’ marriage was long-term. We agree with the Former Husband that this was error because the parties were married 14 years, putting the marriage into the “gray area” where no presumption for or against alimony should be applied. Biskie v. Biskie, 37 So.3d 970, 972 (Fla. 1st DCA 2010) (stating that a 15 year marriage falls into the “gray” area with no presumption for or against alimony); Zeigler v. Zeigler, 635 So.2d 50, 54 (Fla. 1st DCA 1994) (stating that 13.5 year marriage falls into “gray area,” with presumption neither for nor against permanent alimony); see also § 61.08(4), Fla. Stat. (stating that marriages between 7 and 17 years are moderate in length). However, this error is harmless because the final order does not indicate that the trial court applied the presumption in favor of alimony based on the determination that the marriage was long-term.

For the aforementioned reasons, we reverse the final order dissolving the parties’ marriage and remand for proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    Randolph CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5814.
    District Court of Appeal of Florida, First District.
    April 14, 2011.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Randolph Clark, appeals his convictions for burglary of a dwelling or structure with damage in excess of $1,000, and possession of burglary tools. Clark raises three issues on appeal, asserting that the trial court erred by (1) denying his motion for judgment of acquittal on the charge of burglary of a structure with damage; (2) denying his motion for judgment of acquittal on the charge of possession of burglary tools; and (3) prohibiting defense questioning of law enforcement witnesses. We affirm issues one and three without discussion, but we reverse as to the second issue. We find that the state properly concedes a lack of competent substantial evidence to support Clark’s conviction on the charge of possession of burglary tools pursuant to the Florida Supreme Court’s decision in Calliar v. State, 760 So.2d 885 (Fla.1999), and this court’s decision in Hardwick v. State, 16 So.3d 1045 (Fla. 1st DCA 2009).

At trial, the state presented the testimony of law enforcement officers who were at the scene when Clark was arrested. Officer Vought testified that when he arrived at the scene, Clark had been squatting down behind an air conditioner unit where tools and pieces of copper tubing were later found. Officer Vought testified that upon arrest for suspected burglary, Clark stated, “I’m just getting scraps to make money for my kids.” Officer Kremler testified that to his knowledge Clark never went inside the building, and there was no evidence of any forced entry into the building. The testimony of Officer Carmona was consistent with that of Officers Vought and Kremler; he also testified that he saw nothing to indicate that Clark had ever tried to enter the building.

To establish the elements of possession of burglary tools, the state was required to present competent substantial evidence to support the following elements: (1) Clark intended to commit a burglary; (2) Clark had in his possession tools that he intended to use in the commission of the burglary; and (3) Clark did some overt act toward the commission of a burglary. See § 810.06, Fla. Stat. (2009); Fla. Std. Jury Instr. (Crim.) 13.2. Clark argues that the evidence presented at trial was insufficient to support the charge of possession of burglary tools because the tools that were recovered from his possession would only support a finding that they were intended to be used to cut the copper tubing on the air conditioner units, but the evidence was insufficient to show that the tools were to be used in the commission of a burglary. We agree.

In Hardwick v. State, 16 So.3d 1045 (Fla. 1st DCA 2009), as in this case, the defendant appealed his convictions for burglary of a building and possession of burglary tools. At trial, Hardwick had moved for a judgment of acquittal as to the charge of possession of burglary tools, arguing that the evidence did not establish that he intended to use the tools found in his possession to commit a burglary or a trespass. In reversing the trial court’s denial of the defendant’s motion for judgment of acquittal in Hardwick, this court noted that the state did not put on any evidence of forced entry, but only evidence that the defendant carried wire cutters in order to cut copper tubing and electrical wiring, and we held that without proof that the defendant used or intended to use the tools in his possession to enter a structure, the elements of the crime of possession of burglary tools had not been met:

The offense of possession of burglary tools requires proof that the defendant used or intended to use the tools in the course of unlawfully entering the premises of another, which is not satisfied by proof that the defendant intended to use the tools to commit an offense after entering the premises.

Id. at 1046 (citing Calliar v. State, 760 So.2d 885 (Fla.1999)). In Calliar, the defendant was convicted for possession of burglary tools after he was arrested for entering a fenced-in area of a middle school through an open gate and attempting to break the chain of a bicycle with wire cutters and a screwdriver. There, the Florida Supreme Court held that the crime of possession of burglary tools requires proof that the tools were used or were intended to be used to unlawfully enter the premises of another:

We are obligated to give statutes and the words they use their plain meaning. In this case that means construing “burglary tools” as tools used or intended to be used in committing a burglary or trespass as section 810.06 explicitly provides. The statute does not encompass, however, any item that may be used to commit some other offense once the burglary has been accomplished, even if that “other offense” is the offense that the defendant intended to commit once he had accomplished the burglary.
Section 810.02(1), Florida Statutes (1995), defines burglary to mean “entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein.” Under the plain language of section 810.02(1), once Calliar unlawfully entered the school property, he did not have to commit the additional offense intended to be committed within the burglarized premises in order to commit burglary; rather, he need only have intended to commit the additional offense, whether it be theft or some other offense, such as vandalism. The burglary or trespass at issue was complete as soon as Calliar entered the fenced area containing the bike racks with the intent to commit an additional offense.

Id. at 887 (emphasis in original) (citations omitted).

Here, although the state may have presented competent substantial evidence to establish that Clark possessed the tools and used them to cut and remove the copper tubing on the roof of the building, the evidence presented was insufficient to demonstrate that any of the tools were used to gain access to the building, or that Clark intended to use them for entering the building. On the contrary, there was no evidence of entry into the building at all, nor was there any testimony or evidence presented to show that Clark used or intended to use the tools in any way to gain access to the rooftop. Therefore, in accordance with the Florida Supreme Court’s decision in Calliar and this court’s decision in Hardwick, Clark’s conviction for possession of burglary tools must be REVERSED.

LEWIS, CLARK, and ROWE, JJ., concur.


author: MARSTILLER, J.

text:
    Jennifer Carrion LaCOSTE, Wife, Appellant, v. Stephen Scott LaCOSTE, Husband, Appellee.
    No. 1D10-3129.
    District Court of Appeal of Florida, First District.
    April 14, 2011.

      T. Sol Johnson of Johnson & Green, P.A., Milton, for Appellant.
    Stephen Scott LaCoste, pro se, Appel-lee.
   MARSTILLER, J.

Jennifer Carrion LaCoste (“former wife”) raises three issues on appeal from a final judgment of dissolution of marriage. First, she contends the trial court erred by deeming the 159-acre tract of land owned by Stephen Scott LaCoste (“former husband”) prior to the marriage a marital asset and distributing 100 percent of it to him. Alternatively, she argues that if the land was a marital asset, the court should have distributed it equally. Finally, she asserts the court abused its discretion in setting the former husband’s child support obligation by failing to include certain annual distributions in the former husband’s income. We affirm.

The former wife argues the trial court erred as a matter of law in classifying the land as a marital asset subject to equitable distribution. She contends the former husband gave her one-half interest in the land by quitclaim deed from himself to the parties as husband and wife, and her one-half interest is her non-marital asset because the conveyance occurred after the date she filed the petition for dissolution. But during the proceedings below she argued just the opposite: that the land became a marital asset when the former husband conveyed it to the parties jointly. “ ‘In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.’ ” Quinnell v. Platt, 23 So.3d 746, 747 (Fla. 1st DCA 2009) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). It is clear from the record the former wife did not argue, either at trial or in a motion for rehearing, that her interest in the land is a non-marital asset. Consequently, she failed to preserve the asserted error for appellate review.

Turning to the former wife’s remaining issues on appeal, the record reveals no abuse of the trial court’s discretion in distributing the land to the former husband and in determining child support. As to the land — which appears to be the only marital asset subject to equitable distribution — the court considered and made findings on each of the factors set forth in section 61.075(1), Florida Statutes (2006), which permits unequal distribution of marital assets. See generally Boutwell v. Adams, 920 So.2d 151, 153 (Fla. 1st DCA 2006) (trial court is required to make specific findings justifying disparity in asset distribution). While most factors were inapplicable, the court found that two factors justify awarding the former husband the land: the less-than-two-year duration of the marriage, see section 61.075(l)(c); and the fact that only the former husband contributed, through “sweat equity” and non-marital assets, to enhancing the land, see section 61.075(l)(g). Evidence in the record supports the court’s findings, and we cannot say, based on those findings, the court abused its discretion in distributing the land entirely to the former husband. See generally Wilson v. Wilson, 992 So.2d 395, 397 (Fla. 1st DCA 2008) (court’s distribution of marital assets reviewed for abuse of discretion).

In setting the former husband’s child support obligation, the trial court accepted both parties’ most current financial affidavits and relied on them to determine the monthly guidelines amount of $596.00. The court considered the former husband’s testimony and the deposition testimony of the former wife’s expert witness, a certified public accountant, about the accuracy of the income figure represented on the former husband’s affidavit. As it is entitled to do, the court resolved the evidentiary conflicts in the former husband’s favor and found the information in his affidavit accurate. We discern no abuse of discretion. See Shaw v. Nelson, 4 So.3d 740, 742 (Fla. 1st DCA 2009) (child support determination reviewed for abuse of discretion and adherence to statutory guidelines).

AFFIRMED.

VAN NORTWICK and THOMAS, JJ., concur.

      . The former husband conveyed the land to himself and the former wife approximately one month after the former wife filed the petition for dissolution. He testified he did this on the strength of discussions with the former wife indicating she wanted to reconcile. The land was valued at approximately $925,000 in My 2008.

      . Cf. Fla. R. Civ. P. 1.530(e) (permitting a party to raise sufficiency of the evidence on appeal without first moving for rehearing where the action was tried to the court without a jury).

      .The trial court agreed with the former wife that the land became a marital asset when the former husband conveyed it to the parties jointly. Thus estoppel principles would preclude the former wife seeking reversal of the judgment on a legal basis wholly opposite to the one she advanced — and prevailed on— below. See Batie v. Batie, 31 So.3d 939, 940 (Fla. 1st DCA 2010), and cases cited therein.

      . Using nonmarital funds to purchase the needed materials, the former husband built two barns, an electric gate and a pond.


text:
    Theocharis VARITIMIDIS, Appellant, v. WALGREEN COMPANY/SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Appellees.
    No. 1D10-5129.
    District Court of Appeal of Florida, First District.
    April 14, 2011.

      Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Jennifer J. Kennedy and Samuel E. Cooley of Traub, Lieberman, Straus & Shrewsberry, L.L.P., St. Petersburg, for Appellees.
   PER CURIAM.

Claimant appeals from a final compensation order finding his claims barred by the statute of limitations. Because the Judge of Compensation Claims (JCC) erroneously concluded the statute of limitations expired less than two years after the date of accident, and because this conclusion led her to apply precedent that is not controlling, we reverse and remand this case for further proceedings.

Claimant was injured in a compensable accident on December 10, 2007. On November 12, 2009, the E/C furnished Claimant medication prescribed by the doctor whom the E/C had initially authorized to treat Claimant’s injury. Concluding the statute of limitations had already expired when the E/C furnished the prescription medication in November 2009, the JCC found this court’s decision in Williams v. Department of Corrections, 911 So.2d 890 (Fla. 1st DCA 2005), required Claimant to prove the E/C had intentionally provided benefits after the statute of limitations had expired, and to prove Claimant relied to his detriment on the intentional provision of benefits, in order to extend the statute of limitations. The JCC, by finding the medication furnished by the E/C in November 2009, and other prescription medications furnished by the E/C thereafter, was furnished inadvertently, and that Claimant had failed to prove detrimental reliance, then concluded the petition for benefits filed on February 8, 2010, was barred by the statute of limitations.

Section 440.19, Florida Statutes (2007), provides in pertinent part:

(1) Except to the extent provided elsewhere in this section, all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.
(2) Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment.

Section 440.19(1) thus provides that a petition for benefits is timely if filed within two years after the employee knew or should have known the injury or death arose out of work performed in the course and scope of employment. Accordingly, because Claimant was injured on December 10, 2007, under no circumstance could the statute of limitations have run before December 11, 2009. See Orange County Sch. Bd. v. Best, 728 So.2d 1186, 1188 (Fla, 1st DCA 1999) (explaining section 440.19(2) extends rather than shortens limitation period described in section 440.19(1), and if petition for benefits is timely under section 440.19(1) or section 440.19(2) there is no bar to compensation). Here, unlike Williams, the E/C furnished a medical benefit (prescription medication) on November 12, 2009, within two years of the industrial accident. Consequently, also unlike Williams, Claimant did not seek to estop the E/C from asserting the statute of limitations. Instead, Claimant correctly contended the statute of limitations never expired because the E/C continued to provide medical benefits.

When an E/C furnishes an indemnity or medical benefit before the statute of limitations expires, the limitations period is extended for one year by operation of law pursuant to section 440.19(2). See Claims Mgmt., Inc. v. Philip, 746 So.2d 1180, 1182 (Fla. 1st DCA 1999) (holding claimant barred from filing petition for benefits unless claim is filed during the longer of the following two periods of time: (1) within two years from date of injury; or (2) within one year from payment of indemnity benefits or furnishing of remedial treatment, care, or attendance pursuant to either notice of injury or petition for benefits). A claimant who files a proper petition for benefits within this one-year period has no need to assert waiver or es-toppel against an E/C, or prove detrimental reliance upon an E/C’s mistake or inadvertence, to avoid dismissal based on the statute of limitations. Here, the E/C’s furnishing of a medical benefit extended the limitations period for one year from November 12, 2009. Consequently, the petition for benefits filed on February 8, 2010, was timely and the JCC erred in concluding it was barred by the statute of limitations. Accordingly, we reverse, and remand for further proceedings consistent with this opinion.

. REVERSED and REMANDED, with directions.

BENTON, C.J., WEBSTER, and VAN NORTWICK, JJ., concur.


author: PER CURIAM. BENTON, C.J.,

text:
    STATE of Florida, Appellant, v. Kristy Lynn HARRIS, Appellee.
    No. 1D09-4520.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Pamela Jo Bondi, Attorney General, and Michael T. Kennett, Assistant Attorney General, Office of the Attorney General, Tallahassee; Brandon J. Young, Assistant State Attorney, Bonifay, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The state appeals an order granting a motion to suppress evidence seized from the defendant’s vehicle during a search incident to arrest. Although the search was unlawful, the trial court erred as a matter of law by granting the motion, because the police officers had relied in good faith on well-settled case law when they conducted the search.

The police officers had the defendant under surveillance for suspected drug activity, but they stopped her vehicle because they knew she was driving with a suspended license. After the officers had handcuffed the defendant and secured her in a patrol car, they searched her purse, which had been in the passenger compartment of her vehicle, and found metham-phetamines, marijuana, and ecstasy. The search was valid under the bright-line rule in New York v. Belton, 45B U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the controlling precedent at the time. Several weeks later, however, in Arizona v. Gant, — U.S. —, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the supreme court disavowed the common interpretation of Belton.

The Court held in Gant that police officers are authorized to “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” or “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Id. at 1719 (quotation omitted). The Court concluded that the search of Gant’s car once he had been handcuffed and placed in a patrol car was not reasonable, because he was no longer able to reach into the passenger compartment. In addition, there was no reason to believe that the car might contain evidence relevant to Gant’s offense of driving with a suspended license. Id.

In the present case, the trial court correctly determined that the search of the defendant’s purse was invalid under Gant, because she was handcuffed and in a patrol car when her purse was seized. The court was also correct in holding that Gant applied retroactively because the decision in this case was not final when Gant was decided. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). However, the trial court erred by rejecting the state’s argument that the search was valid under the good-faith exception of U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

There were very few opinions on the subject at the time the motion to suppress was considered. The trial court adopted the view expressed by the Middle District of Tennessee that the good-faith exception of Leon does not apply to reliance on Supreme Court precedent. See U.S. v. Buford, 623 F.Supp.2d (M.D.Tenn.2009). Since then, however, courts from numerous state and federal jurisdictions, including Florida’s Fifth District Court of Appeal and the federal Eleventh Circuit Court of Appeals, have decided that the good-faith exception does apply to pre-Gant searches incident to arrest that were in the pipeline when Gant was decided, whereas relatively few state and federal jurisdictions have decided that Leon should not apply to judicial precedent.

In Brown v. State, 24 So.3d 671 (Fla. 5th DCA 2009), review denied, 39 So.3d 1264 (Fla.2010), the court concluded that the search of the defendant’s vehicle was lawful under Gant, because the officer had seized evidence of .the crime for which the defendant was being arrested. Id. at 677. Nevertheless, the court decided in the alternative, that the fruits of the search should not be excluded, because the police were acting in good-faith reliance on the “widely accepted interpretation of Belton.” Id. at 680. The bright-line rule of Belton, which approved searches of a vehicle’s passenger compartment after the police had secured the arrestee, had been accepted for 28 years, “was taken literally by federal courts across the country and all of the courts in Florida,” and was “widely taught in police academies.” Id. at 680-81. “To apply the exclusionary rule in this case cannot possibly deter police because they did exactly what they were trained to do based on what we (judges) told them was appropriate.” Id. at 681.

In United States v. Davis, 598 F.3d 1259 (11th Cir.2010), cert. granted, — U.S. —, 131 S.Ct. 502, 178 L.Ed.2d 368 (U.S. Nov. 1, 2010), the defendant was a passenger in a car during a routine traffic stop, and after he gave a false name, he was arrested and handcuffed and secured in a patrol car. The court concluded that the subsequent search of the vehicle was invalid under Gant, but that the officer had conducted the search in good faith pursuant to Belton, and thus there was no deliberate, culpable conduct that warranted deterrence. Quoting from Leon, the court said that “a search performed in accordance with our erroneous interpretation of Fourth Amendment law is not culpable police conduct,” because the police “are entitled to rely on our decisions, and ‘[p]e-nalizing the officer for the [court’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.’” Id. at 1265-66 (quoting from U.S. v. Leon, 468 U.S. at 921,104 S.Ct. 3405).

The rule in Belton was quite clear and thus did not require individual police interpretation. Therefore, “[i]t is precisely in situations like this, when the permissibility of a search was clear under precedent that has since been overturned, that applying the good-faith exception makes sense,” because “the courts have already effectively determined the search’s constitutionality, and applying the exclusionary rule on the basis of a judicial error cannot deter police misconduct.” Davis, 598 F.3d at 1267. Comparably, the Supreme Court has applied a good-faith exception when law enforcement relied upon a subsequently invalidated statute in Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), and on a subsequently invalidated ordinance in Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).

The Supreme Court has made it clear that the exclusionary rule is intended to deter police misconduct, not to remedy the prior invasion of a defendant’s constitutional rights. Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). Application of the exclusionary rule in the case at bar would not deter future police misconduct, nor would it deter appellate courts from issuing erroneous rulings, or lower courts from following the lead of higher courts. Instead, the officers who relied on Belton, and society which benefits from apprehension of law-breakers, would be punished for the Supreme Court’s decision that a prior ruling was error. “Particularly when law enforcement officers have acted in objective good faith ... the magnitude of the benefit conferred on such guilty defendants [by the exclusionary rule] offends basic concepts of the criminal justice system.” Leon, 468 U.S. at 907-08, 104 S.Ct. 3405.

For these reasons, we conclude that the motion to suppress should have been denied. The order granting the motion is reversed and this case is remanded to the trial court for further proceedings. We certify as a question of great public importance the question that the U.S. Supreme Court left open in Arizona v. Gant:

DOES THE GOOD-FAITH EXCEPTION TO THE EXCLUSIONARY RULE APPLY TO EVIDENCE SEIZED BY THE POLICE IN CONTRAVENTION OF ARIZONA v. GANT, — U.S. —, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)?

Reversed and remanded.

PADOVANO and CLARK, JJ., concur. BENTON, C.J., dissents with opinion.

BENTON, C.J.,

dissenting.

I would affirm the judgment below. The trial court’s decision is consonant with the view of the majority in Arizona v. Gant, — U.S. —, —, 129 S.Ct. 1710, 1723, 173 L.Ed.2d 485 (U.S.2009), that where “it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement ‘entitlement’ to its persistence.”

      . See U.S. v. Davis, 598 F.3d 1259 (11th Cir. 2010); U.S. v. McCane, 573 F.3d 1037 (10th Cir.2009); U.S. v. Amos, 733 F.Supp.2d 907 (E.D.Tenn.2010); Brown v. Romeoville, No. 08C1577, 2010 WL 431474 (N.D.Ill. Feb. 1, 2010); U.S. v. Schuttpelz, No. 07-20410, 2010 WL 200827 (E.D.Mich. Jan. 15, 2010); U.S. v. Southerland, No. 7:09-CR-68-FL, 2009 WL 5149263 (E.D.N.C. Dec. 23, 2009); U.S. v. Gray, No. 4:09CR3089, 2009 WL 4739740 (D.Neb. Dec. 7, 2009); U.S. v. Lee, No. 07-04050-01-CR-C-NKL, 2009 WL 3762404 (W.D.Mo. Nov. 10, 2009); U.S. v. Lopez, No. 6:06-120-DCR, 2009 WL 3112127 (E.D.Ky. Sept. 23, 2009); U.S. v. Allison, 637 F.Supp.2d 657 (S.D.Iowa 2009); U.S. v. Grote, 629 F.Supp.2d 1201 (E.D.Wash.2009); Brown v. State, 24 So.3d 671 (Fla. 5th DCA 2009), review denied, 39 So.3d 1264 (Fla. 2010); State v. Karson, 44 Kan.App.2d 306, 235 P.3d 1260 (2010); State v. Brown, 33 So.3d 894 (La.Ct.App.2009); McCain v. State, 194 Md.App. 252, 4 A.3d 53 (2010); People v. Short, 289 Mich.App. 538, 797 N.W.2d 665 (2010); State v. Hicks, — S.W.3d — (S.D.Mo. Aug. 20, 2010) (en banc); State v. Baker, 229 P.3d 650 (Utah 2010); State v. Dearborn, 327 Wis.2d 252, 786 N.W.2d 97 (2010); State v. Afana, 169 Wash.2d 169, 233 P.3d 879 (2010) (en banc) (but there is no good-faith exception under the state constitution).

      . See U.S. v. Gonzalez, 578 F.3d 1130 (9th Cir.2009), rehearing en banc denied, 598 F.3d 1095 (9th Cir.2010); U.S. v. Peoples, 668 F.Supp.2d 1042 (W.D.Mich.2009); U.S. v. Buford, 623 F.Supp.2d 923 (M.D.Tenn.2009); People v. McCarty, 229 P.3d 1041 (Colo.2010); U.S. v. Debruhl, 993 A.2d 571 (D.C.2010); People v. Arnold, 394 Ill.App.3d 63, 333 Ill.Dec. 331, 914 N.E.2d 1143 (2009); Bledsoe v. Commonwealth, No. 2009-CA-001149-MR, 2010 WL 4025901 (Ky.Ct.App. Oct. 15, 2010) (unpublished); State v. Kingsley, — S.W.3d — (Mo.Ct.App. Aug. 24, 2010); Baxter v. State, 238 P.3d 934 (Okla.Crim.App.2010).


text:
    Thomas JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6531.
    District Court of Appeal of Florida, First District.
    April 14, 2011.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the revocation of his probation based on his discharge from a drug treatment facility for writing an inappropriate unsolicited letter to a woman outside of the facility. We reverse because Appellant’s letter and subsequent discharge from the facility did not constitute a willful and substantial violation of his probation.

Successful completion of a drug treatment program was a condition of Appellant’s probation, but, for Appellant’s failure to complete the program to be a willful violation of probation, the evidence must show that he was at fault or “in some manner responsible” for his dismissal from the program. See Rubio v. State, 824 So.2d 1020, 1022 (Fla. 5th DCA 2002). The trial court has considerable discretion in determining whether a violation of probation has occurred, State v. Carter, 835 So.2d 259, 262 (Fla.2002), but, for a probationer to be at fault or responsible for his dismissal, he must at least be informed that dismissal is a potential sanction for the behavior at issue. Cf. Bennett v. State, 684 So.2d 242 (Fla. 2d DCA 1996) (holding that defendant’s refusal to admit to charged offense leading to his dismissal from treatment program was not willful violation of probation because defendant had not been advised that he would have to admit to offense in order to complete probation).

Here, the treatment facility director admitted that Appellant did not violate any specific rule by sending the letter and that Appellant was never told that he could be dismissed from the program for sending letters to persons outside of the facility. Accordingly, although it is undisputed that Appellant sent the letter at issue (and that the letter was in poor taste), the evidence fails to establish that Appellant’s dismissal from the program for sending the letter constitutes a willful violation of his probation. Thus, the trial court abused its discretion in revoking Appellant’s probation.

For these reasons, the order revoking Appellant’s probation is reversed and this case is remanded to the trial court to reinstate Appellant’s probation.

REVERSED and REMANDED with directions.

DAVIS, LEWIS and WETHERELL, JJ., concur.


text:
    Jeffrey D. MALINOWSKI, Appellant, v. Georgia L. MALINOWSKI, Appellee.
    No. 1D10-6198.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Jeffrey D. Malinowski, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Having determined that the appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction, the appeal is hereby dismissed. Any remedy the appellant may have lies with the lower tribunal. Cf. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1988).

WOLF, DAVIS, and PADOVANO, JJ., concur.


text:
    Molly McGROTHA, Appellant, v. Fred PEARSON, Esquire, Appellee.
    No. 1D10-5744.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Richard W. Reno of the Law Office of Richard W. Reno, P.A., Crawfordville, for Appellant.
    Brian S. Duffy and Charles J.F. Schreiber, Jr. of McConnaughhay, Duffy, Coonrod, Pope & Weaver, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has sought review of a final Order Dismissing Complaint, signed by the lower tribunal judge on September 29, 2010. However, because the order has not been filed with the clerk of the lower tribunal, it has not yet been rendered and the appeal is premature. Fla. R.App. P. 9.020(h). Accordingly, the appellee’s Motion to Dismiss for Lack of Jurisdiction is granted and the appeal is dismissed.

WOLF, DAVIS, and PADOVANO, JJ., concur.


text:
    Michael HINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4303.
    District Court of Appeal of Florida, First District.
    April 14, 2011.
    Michael Hines, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the August 13, 2008, order denying in part and granting in part defendant’s motion for postconviction relief and granting re-sentencing in Escambia County Circuit Court case number 2001-2327-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

WOLF, DAVIS, and PADOVANO, JJ., concur.


text:
    Francis X. MURPHY, III, Petitioner, v. Al LAMBERTI, Sheriff of Broward County, Respondent.
    No. 4D11-1176.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2011.

      J. David Bogenschutz of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Pursuant to a stipulation with the state, the petitioner was released on bond with conditions. Several months later, the state moved to revoke that bond because of the petitioner’s violation of a condition. After taking evidence, the trial court made a finding that the violation was intentional and revoked the bond. Petitioner disputes that finding; however, we agree with the state that it is supported by the record.

The trial court, however, made no actual findings that “no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.” This is a requirement of pretrial detention under section 907.041(4)(c)7, Florida Statutes (2010). Blair v. State, 15 So.3d 758, 759 (Fla. 4th DCA 2009) (“A pretrial detention order must contain findings of fact and conclusions of law showing that the constitutional and statutory criteria for pretrial detention are met. See Fla. R. Crim. P. 3.132(c)(2); § 907.041(4)®, Fla. Stat. (2008).”), approved, 39 So.3d 1190 (Fla.2010). The statute does not allow the trial court to deny release solely on a finding that the defendant violated a condition of bond. Buhbut v. Bieluch, 835 So.2d 1222, 1223 (Fla. 4th DCA 2003).

We therefore grant the petition for writ of habeas corpus in part, and remand to the trial court to set an expedited hearing to determine whether there are any reasonable conditions of release which would protect the community and assure petitioner’s presence at trial.

Petition granted in part; case remanded for an expedited hearing.

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


author: VILLANTI, Judge.

text:
    Kathleen LIEBRECHT, Appellant, v. Thomas LIEBRECHT, Appellee.
    No. 2D10-2133.
    District Court of Appeal of Florida, Second District.
    April 15, 2011.

      Woodrow “Mac” Melvin, Jr., of Woodrow “Mac” Melvin, Jr., P.A., Miami; and Gregory D. Jones of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant.
    Lorena L. Kiely, Tampa, for Appellee.
   VILLANTI, Judge.

Kathleen Liebrecht (the Wife) appeals various aspects of the final judgment dissolving her marriage to Thomas Liebrecht (the Husband). We affirm the final judgment in all respects except one. Because the trial court abused its discretion under the specific circumstances of this case by failing to award the Wife a nominal amount of permanent alimony, we reverse the portion of the final judgment that denied the Wife’s claim for permanent alimony and remand with instructions.

This case involves a marriage that lasted fifteen years and eight months, putting it at the upper end of the “gray area.” During the majority of the marriage, the Husband worked in the residential real estate industry, and his career followed the trajectory of the Florida housing market. His income peaked in 2006, but since that time, it has steadily declined. In 2008, he was laid off from his position as land acquisition manager for a large home builder. After several months of unemployment, the Husband was able to find a job with a company that bought, rehabbed, and resold foreclosed homes; however, this job paid only two-thirds of his previous income. To make up the difference, the Husband took a part-time job providing IT services on an hourly basis to a law film. He also liquidated various stock accounts owned by the parties and sold other assets to support the Wife and children during the dissolution proceedings.

The Wife, who holds a bachelor of science degree in accounting from Florida State University, worked full-time during the early part of the parties’ marriage. However, after the parties’ first child was born, she gradually reduced her schedule. By the time the parties’ second child was born, the Wife was providing accounting advice over the phone to her sister for fewer than two hours per month. At the time of the dissolution hearing, the Wife had not had any appreciable outside employment for thirteen years. There was no dispute that the Husband and Wife had agreed that the Wife would forego her career to care for the parties’ home and children.

At the dissolution hearing, the Wife argued that she should be awarded permanent periodic alimony based on the length of the parties’ marriage and their agreement that she would not work outside the home but would instead be a “stay-at-home mom” to care for the parties’ children. The Husband argued that the Wife should be able to obtain some level of employment using her accounting degree and experience, particularly now that the children are older. Neither party, however, presented any evidence to show what the Wife’s employment prospects were, and the Wife admitted that she had not even tried to find a job during the pendency of the dissolution proceedings.

At the conclusion of the hearing, the trial court found that while the Wife had not been in the workforce for over thirteen years, she was relatively young, well-educated, and in good health. Based on these findings, the trial court declined to award her permanent periodic alimony. Instead, the court awarded the Wife lump-sum, nonmodifiable bridge-the-gap alimony of $125,000 payable in monthly installments of $2500 for fifty months. This award gives the Wife slightly more than four years to reenter the workforce and become self-supporting, after which time she will receive no support from the Husband.

In this appeal, the Wife argues that the trial court abused its discretion by awarding her bridge-the-gap alimony rather than permanent periodic alimony based on the length of the marriage and her status as a “stay-at-home mom.” While we find no abuse of discretion in the award of bridge-the-gap alimony, we do find that the trial court abused its discretion in not awarding nominal permanent alimony to preserve the Wife’s right to seek a larger award of permanent alimony should she be unable to become self-supporting.

Bridge-the-gap alimony is appropriately awarded when one party, who has the capacity for self-support, needs “an award of permanent, lump-sum alimony, paid over a set period, to ease a party’s transition from married life to single life.” Blanchard v. Blanchard, 793 So.2d 989, 991 (Fla. 2d DCA 2001). This type of alimony is designed “to assist a spouse with any legitimate, identifiable, short-term need under circumstances where a lump sum award is reasonable and when the other spouse has the ability to pay the award.” Borchard v. Borchard, 730 So.2d 748, 753 (Fla. 2d DCA 1999). In keeping with this purpose, this court has affirmed awards of bridge-the-gap alimony when the requesting spouse has the education and skills necessary to obtain employment and become self-supporting but needs financial support for a defined period of time in which to find such employment and transition back into the workforce. See, e.g., Schlagel v. Schlagel, 973 So.2d 672 (Fla. 2d DCA 2008) (affirming award of bridge-the-gap alimony when unemployed wife had a law degree and could reasonably be expected to obtain employment in the legal field but needed financial support during her job search); Nourse v. Nourse, 948 So.2d 903 (Fla. 2d DCA 2007) (affirming award of bridge-the-gap alimony when unemployed college-educated wife could reasonably be expected to obtain meaningful employment but needed a period of time with financial support to make the transition back into the workforce). Of course, for bridge-the-gap alimony to be properly awarded, there must be sufficient evidence to show that the perceived “gap” may reasonably and actually be “bridged” during the time such alimony is to be paid.

Here, the evidence at the dissolution hearing showed that the Wife holds a bachelor’s degree in accounting, has taken graduate courses in accounting, and has worked as an accountant in the past. With her education and experience, the Wife has a reasonable level of earning capacity and should be able to obtain employment sufficient to become self-supporting. The Wife’s argument at the dissolution hearing that she cannot reasonably be expected to find employment is less than credible since she herself admitted that she has not tried to do so. However, the trial court recognized that it would take some time for the Wife to achieve self-support since she has been out of the workforce for thirteen years. To account for this, the trial court awarded the Wife lump-sum, nonmodifiable bridge-the-gap alimony of $125,000, payable in monthly installments of $2500 for fifty months. Given the Wife’s relative youth, education, and work experience, we cannot say on this record that this award constituted an abuse of discretion.

Nevertheless, based on the evidence presented at the hearing and the current economic climate, we do not share the trial court’s optimism that the Wife can definitively and realistically reenter the workforce after a thirteen-year gap in employment and achieve self-sufficiency in four years while also caring for the parties’ three school-age children. Moreover, the historic incomes of the parties, the length of the marriage, and the Wife’s potential future needs would normally dictate an award of permanent alimony. Accordingly, we conclude that it was an abuse of discretion to fail to award the Wife nominal permanent alimony on these facts.

In this respect, this case is similar to Schlagel. There, the evidence showed that the husband had worked throughout the marriage while the wife had worked only sporadically. Schlagel, 973 So.2d at 674. During the marriage, the wife had obtained her law degree; however, she had been unable to pass the Florida Bar examination and had been unemployed since her graduation. Id. Based on a vocational rehabilitation expert’s report, the trial court imputed income to the wife based on jobs available to persons with a law degree but no Florida Bar licensure. Id. at 675. Then, based on this imputed income, the trial court denied the wife’s request for permanent alimony. Id.

On appeal, this court affirmed the imputation of income but reversed the denial of any permanent alimony. Id. at 676. In doing so, we noted that an “award of a nominal amount of permanent alimony here will allow the trial court to increase the alimony award should the [w]ife find that she is unable to secure employment, after using her best efforts, in the imputed amount.” Id. at 676-77. We found this to be an appropriate disposition because the “award of nominal permanent alimony ‘will permit the wife to petition the trial court to pursue a future increase in permanent alimony should she continue to be unable to work’ and that ‘it will preserve the jurisdiction of the trial court to revisit the matter as the parties go on with their new lives.’ ” Id. at 676 (quoting Nourse, 948 So.2d at 904). Thus, this court reversed the complete denial of permanent alimony and remanded for the trial court to award nominal alimony of $1 per year. Id. at 677.

Here, as in Schlagel, the trial court should have awarded nominal permanent alimony to the Wife to preserve her ability to seek an increase should she be unable to secure employment at a self-supporting level after using her best efforts to do so. Given today’s economy and the Wife’s long absence from the workforce, the gap may simply be too large for her to successfully bridge, even with her best efforts. Accordingly, we reverse the complete denial of permanent alimony and remand for the trial court to award nominal alimony of $1 per year to the Wife. In all other respects, the final judgment of dissolution is affirmed.

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

ALTENBERND and SILBERMAN, JJ., Concur.

      . We note that section 61.08(4), Florida Statutes (2010), which describes a "moderate-term marriage” as one "having a duration of greater than 7 years but less than 17 years,” does not apply to this case, which was filed in October 2008.


author: MORRIS, Judge.

text:
    Jason Keith DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5868.
    District Court of Appeal of Florida, Second District.
    April 15, 2011.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

Jason Keith Dawson appeals his judgments and sentences for armed trafficking in a controlled substance, felon in possession of a firearm, and obstructing or opposing an officer without violence. Dawson argues that his motion to suppress should have been granted because the officers did not have reasonable suspicion that he was armed with a dangerous weapon and that the officers’ pat-down search was therefore unlawful. We agree and reverse.

I. Facts

At approximately 11:00 p.m. on January 21, 2008, two Hillsborough County Sheriffs deputies were in an undercover vehicle conducting an aggressive control campaign in North Tampa. The officers testified this area was known for criminal activity. While patrolling the area, the officers spotted Dawson walking along Dale Mabry Highway. Dawson was walking along the fog line on the road, but he was stumbling. The officers decided to investigate so they parked their vehicle near Dawson and exited the vehicle at the same time. Both officers were wearing “battle dress uniforms.” One of the officers asked Dawson to come speak to the officers. At this point in time, Dawson appeared nervous.

The officers testified that while they were speaking with Dawson, Dawson repeatedly put his hands into his pants and jacket pockets, even after being instructed several times not to do so. Because Dawson was wearing baggy clothing, the officers could not observe any bulges. However, one of the officers testified that he believed that Dawson “could have contraband or a weapon” and on that basis, he conducted a pat-down of Dawson.

As the deputy felt Dawson’s back pocket, he felt what he thought was a bag of pills, based in part on the fact that he saw a portion of a plastic bag sticking out of Dawson’s pants. Then, while patting down Dawson’s front pocket, the deputy felt what he believed was a gun. Dawson tried to put his hand into the same front pocket, and according to the officer, he and Dawson began to struggle. The deputy further testified that during that struggle, Dawson tried to hit the deputy with his fist. Dawson was able to break free and run about fifteen feet before the officers subdued him. The officers discovered ecstasy pills and a gun in Dawson’s pockets. After Miranda warnings were administered, Dawson told the officers that he got the pills from a friend and that the gun was given to him by another friend for protection.

Dawson’s version of the events was different. Dawson testified that he was walking along Dale Mabry talking on his cell phone when a Ford Expedition pulled in front of him blocking his route of travel. He testified that the officers rolled the windows down and ordered him to stop. One of the officers asked for Dawson’s identification and began interrogating him. Dawson testified that he never put his hands in his pockets and never heard the officers tell him not to do so.

In his suppression motion, Dawson argued that a pat-down search may only be conducted if the officers have a reasonable belief that the person detained is armed with a dangerous weapon and that routine pat-down searches based on general officer safety concerns are not constitutionally permitted. The trial court denied the motion. Dawson then pleaded guilty to the charges while specifically reserving the right to appeal the denial. We are now asked to determine whether the facts of this case justified the pat-down search.

II. Analysis

In reviewing the trial court’s denial of Dawson’s suppression motion, we must “accord a presumption of correctness to the trial court’s determination of the historical facts, but must independently review mixed questions of law and fact that ultimately determine the constitutional issues arising in the context of the Fourth Amendment.” Moody v. State, 842 So.2d 754, 758 (Fla.2003). We therefore look to determine if competent, substantial evidence supports the factual findings, and we review de novo the trial court’s application of the law to the facts. See State v. Clark, 986 So.2d 625, 628 (Fla. 2d DCA 2008).

This case presents the issue of two conflicting interests: the Fourth Amendment right to be free from unreasonable searches and seizures and the ongoing concern for officer safety in an increasingly dangerous profession. But even though the facts of this case reveal an alarming result of the pat-down — a gun — we are not permitted to be distracted by the fruit of the search. Instead, our focus must be on the justification for the search. See D.B.P. v. State, 31 So.3d 883, 887 (Fla. 5th DCA 2010) (“The success of the search ... is not now and never has been the test to be applied.”).

In a case with similar facts, the Fourth District was asked to determine the issue now presented to us: whether the actions of the defendant in keeping his hands in his pockets provided reasonable suspicion that the defendant was armed with a weapon. See Ray v. State, 849 So.2d 1222 (Fla. 4th DCA 2003). In Ray, the appellant was stopped for riding his bicycle ■without the proper lights. Id. at 1224. The area in which the stop occurred was known for illegal drug activity, and Ray was acting fidgety according to the officer who conducted the stop. Id. The officer also testified “that despite several requests, Ray did not want to remove his hands from his jacket pocket.” Id. Based on that fact, along with the officer’s “knowledge of the link between drugs and weapons,” the officer was concerned for his safety and conducted a pat-down search which resulted in the discovery of drugs. Id. The trial court denied Ray’s suppression motion on the basis that the facts “were sufficient to give the [officer] reasonable suspicion to believe Ray was armed.” Id.

On appeal, the Fourth District reversed. The court noted that one recognized circumstance justifying a weapons pat-down search is the “combination of the defendant’s nervousness and the officer’s observation of a bulge in the defendant’s clothing.” Id. at 1225. However, much like the facts of this case, the officer in Ray expressly testified he did not see any bulges in Ray’s clothing. Id. The court dismissed the officer’s testimony regarding a link between weapons and drugs because there was simply no evidence linking Ray to drugs or any other type of criminal activity. As a result, the court held that the fact that Ray was reluctant to remove his hands from his pockets — standing alone — was “insufficient to establish a reasonable suspicion that Ray was armed with a dangerous weapon.” Id.

The Fifth District has likewise held that a person’s reluctance to remove his hands from his pockets — without more — does not provide reasonable suspicion warranting a pat-down search. See D.B.P., 31 So.3d at 886.

And in Coleman v. State, 723 So.2d 387, 387 (Fla. 2d DCA 1999), we held that a pat-down search was improper where the only justification provided by the officer was the fact that the appellant “was acting nervous and holding his hand over his pants pocket.” Similar to this case, the officer in Coleman testified he did not see any weapons or notice any bulges in the appellant’s clothing that would indicate the appellant was carrying a weapon. Id.

For a weapons pat-down search to be valid, an officer must identify objective facts indicating that the person detained is armed and dangerous. See Howell v. State, 725 So.2d 429, 431 (Fla. 2d DCA 1999). But here, the only justification provided by the officers was the fact that Dawson refused to comply with their requests to keep his hands out of his pockets. That fact — standing alone — was insufficient to establish reasonable suspicion. The comment made by one officer that he believed Dawson “could have contraband or a weapon” was simply unsupported by any identifiable objective facts to lead him to that conclusion. Because “routine pat-down searches based on general concern for officer safety are not constitutionally permitted,” McNeil v. State, 995 So.2d 525, 526 (Fla. 2d DCA 2008), the officers lacked reasonable suspicion to conduct a pat-down search of Dawson and the trial court erred by denying the suppression motion.

III. Conclusion

We are cognizant of the enormous risk that law enforcement officers face each and every day, and we do not treat lightly the concerns for officer safety. However, such concerns cannot trump the Fourth Amendment protection from unreasonable searches and seizures unless officers can articulate a reasonable basis to believe that the person is armed. The facts of this case, even when viewed in the light most favorable to the State, do not meet that threshold requirement. Accordingly, we reverse the trial court’s denial of the motion to suppress.

NORTHCUTT and CRENSHAW, JJ., Concur.

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


author: KELLY, Judge.

text:
    Mathew BAKALA, Appellant, v. Dorothy BAKALA, Appellee.
    No. 2D10-4381.
    District Court of Appeal of Florida, Second District.
    April 15, 2011.
    Douglas R. Bald of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., Sarasota, for Appellant.
    Walter E. Smith of Meros, Smith, Laz-zara & Olney, P.A., St. Petersburg, for Appellee.
   KELLY, Judge.

Mathew Bakala appeals from the order dismissing his lawsuit for failure to prosecute. We reverse because record activity occurred in the case within sixty days after the notice of lack of prosecution was served, thus precluding dismissal under Florida Rule of Civil Procedure 1.420(e).

On September 16, 2005, Mathew filed an action to set aside a quitclaim deed that transferred real property owned solely by his brother, Lawrence Bakala, to joint ownership with his sister, Dorothy Bakala. Mathew also sought to have Lawrence’s will set aside, alleging that Lawrence was not mentally competent to transfer property or to execute a will. The case proceeded with various filings, and trial was eventually set for March 10, 2008. On January 23, 2008, counsel for Mathew and Dorothy entered into a stipulation to continue trial, and on that same date, the trial court entered an order continuing trial. No further activity occurred in the case until May 28, 2010, when the trial court entered a “Motion and Notice and Judgment of Dismissal” requiring Mathew to show good cause at least five days before the hearing date of July 30, 2010, why the action should not be dismissed for lack of prosecution.

On July 22, 2010, eight days before the scheduled hearing, Mathew filed his showing of good cause in which he stated that Dorothy had died on May 30, 2010, that her estate had been opened in the probate court, and that he intended to file a sug-gestión of death and to request the substitution of the personal representative of the estate as party respondent in this action. On July 26, 2010, as promised in the showing of good cause, Mathew filed a suggestion of death and a motion for substitution of party. Following the hearing on July 30, 2010, on the trial court’s notice of potential dismissal, the trial court dismissed the case with prejudice. This was error. Mathew acted within the sixty-day period after the court’s notice of potential dismissal by filing the suggestion of death and motion for substitution, thus precluding dismissal for failure to prosecute. See Fla. R. Civ. P. 1.420(e); Mickens v. Damron, 1 So.3d 1160 (Fla. 2d DCA 2009); Edwards v. City of St. Petersburg, 961 So.2d 1048 (Fla. 2d DCA 2007). Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.


author: ROBERTS, J.

text:
    Thomas S. LINZY and Erosion Stopper, Inc., Appellants, v. Dewey J. RAYBURN and Jennifer Rayburn, Appellees.
    No. 1D10-2246.
    District Court of Appeal of Florida, First District.
    April 15, 2011.

      Elizabeth K. Russo and Susan S. Lerner of Russo Appellate Firm, P.A., Miami, for Appellants.
    Charles L. Truncate of Charles L. Truncate, P.A., Jacksonville, for Appellees.
   ROBERTS, J.

Thomas Linzy and his employer, Erosion Stopper, Inc., the defendants below, appeal the trial court’s order granting the motion for new trial filed by Dewey and Jennifer Rayburn, husband and wife, the plaintiffs below. The defendants argue that the trial court erred in granting the motion because defense counsel’s statements during his closing argument were not improper or, in the alternative, did not rise to a level warranting a new trial. We disagree and affirm.

The plaintiffs filed a complaint for negligence against the defendants for injuries arising out of a motor vehicle collision between Mr. Linzy and Mr. Rayburn. Before trial, the defendants admitted negligence, but denied that the plaintiffs suffered any damages as a result of the collision. The parties stipulated that the only issue for trial was whether the defendants’ negligence was the legal cause of damage to the plaintiffs.

Both parties filed pretrial motions in limine to exclude counsel or any witnesses from making any statements concerning insurance, the financial status of either party or the defendants’ ability to pay any damages awarded. During his opening statement, defense counsel introduced Randy Crews, the owner of Erosion Stoppers, by making the following statements:

I represent the defense in this case. I talked to you briefly yesterday. My client is Mr. Randy Crews, sitting over there. Mr. Crews runs a small business in Baker County called Erosion Stoppers. He does construction work where there are environmental concerns, and they go out to stop erosion.
Mr. Crews hasn’t tried to run away from responsibility for the accident. He hasn’t said, [“]This accident wasn’t our fault,[”] and it’s not an issue in the case because he said, [“JThis accident was our fault.[”] What we do dispute in this case is whether or not Mr. Rayburn sustained any injury as a result of that accident.
So I think from our standpoint, from the defense standpoint, and from Mr. Crews’ standpoint, the reward for standing up and saying, [“]Hey, we caused this accident, and it was our fault,[”] is now Mr. Rayburn wants him [Mr. Crews] to buy his entire back condition that he said has plagued him since he was a child.
And that’s why, ladies and gentlemen, the position of the defense will be — is that Mr. Crews is being asked to pay for something that was there.
⅜ * *
So, ladies and gentlemen, I’m going to do the best I can on behalf of Mr. Crews and his small company to show you not only that the[y] are stand-up people who have accepted fault for this, but they did not cause this back injury. They did not cause his back pain.

The plaintiffs did not object to any of these statements. After all evidence was presented, the plaintiffs filed another motion in limine to exclude defense counsel from making any statements during his dosing argument that Mr. Crews would be solely responsible for paying any damages awarded. The plaintiffs argued that the defendants were represented by an insurance company, and, as a result, any such statements would be misleading and nothing less than an appeal to the jury to protect the defendants from a harmful verdict. Defense counsel stated that he would refrain from making any such statements.

During his closing argument, however, defense counsel made the following statements:

And I know it’s been a long week, and I know you’ve paid careful attention, and on behalf of myself, and also on behalf of [Randy] Crews sitting over there, I thank you.
You know, Mr. Crews — the great thing about American justice is that it’s a two-way street. It doesn’t just work for Mr. Rayburn. He’s not the only one that deserves consideration. There’s another man sitting over there. He deserves your consideration as well.
* * *
This man over here, Mr. Crews, is being asked to pay for a lifetime of pain management that [Mr. Rayburn] received two separate referrals for within two weeks of this accident. Two separate doctors said, [“]You have to go to pain management^”]
[Mr. Crews’] company unfortunately gets in an accident with [Mr. Rayburn], and those two other referrals don’t matter. Now it’s all you [Mr. Crews]. You pay for everything [Mr. Crews]. And you know what, that’s okay. But if you’re going to do that, then you’ve got to come prepared to tell the truth, prepared to be forthright and prepared to put up on the table the evidence that makes this man [Mr. Crews] responsible.

(Emphasis added.)

The plaintiffs objected after the last statement, arguing that defense counsel violated the motion in limine, and moved for a mistrial. The trial court took the motion for mistrial under advisement and admonished defense counsel. The jury ultimately returned a verdict for the defendants, specifically finding that Mr. Linzy’s negligence was not the legal cause of damage to Mr. Rayburn. The plaintiffs subsequently filed a motion for new trial based in part on defense counsel’s statements during his closing argument. Following a hearing, the trial court granted the motion.

We review the trial court’s grant of the plaintiffs’ motion for new trial for abuse of discretion. In doing so, we must recognize a trial court’s broad discretion in ruling on a motion for new trial and apply the reasonableness test to determine whether the trial court abused that discretion. If we determine that reasonable persons could differ as to the propriety of the trial court’s decision, then we cannot find an abuse of discretion. See Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999).

On appeal, the defendants argue that the trial court abused its discretion in granting the motion for a new trial based on what amounted to “a slip of the tongue” by defense counsel in his closing argument and that the statements, if improper, were isolated and not repeated after defense counsel was admonished. In evaluating the effect of defense counsel’s statements during his closing argument, the statements should be viewed in the context of the trial as a whole. In light of the parties’ motions m limine made before trial, defense counsel’s statements during his opening statement, and the plaintiffs’ motion in limine made during trial, defense counsel’s statements during his closing argument were improper. Despite the fact that Mr. Crews was not a named defendant in the case and that defense counsel was retained by an insurance company to represent the defendants, defense counsel repeatedly stated that Mr. Crews would be solely responsible for any award of damages. By making such statements, defense counsel misled the jury and improperly attempted to appeal to the jury’s sympathy for Mr. Crews, the small business owner he had repeatedly referred to in his opening statement, in order to protect the defendants from a harmful verdict. See Hollenbeck v. Hooks, 993 So.2d 50, (Fla. 1st DCA 2008). Accordingly, we find that the trial court’s decision to grant a new trial was reasonable and, therefore, not an abuse of discretion.

AFFIRMED.

CLARK and WETHERELL, JJ., concur.


text:
    Blain SLAGLE, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5672.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Nancy A. Daniels, Public Defender, Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Brooke Poland and Michael T. Kennett, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the judgment and sentence entered after he was found guilty by a jury of robbery with a deadly weapon and aggravated fleeing or attempting to elude a law enforcement officer. Appellant contends that the State’s improper questions during cross-examination and improper arguments during closing arguments constitute fundamental error, necessitating a new trial. The State properly concedes error, and we reverse and remand for a new trial.

While the prosecutor’s questions and comments, standing alone, may not warrant a new trial, the cumulative effect of the prosecutor’s error denied Appellant a fair and impartial trial. See Brooks v. State, 918 So.2d 181, 202 (Fla.2005) (discussing cumulative error analysis) (quoting Jackson v. State, 575 So.2d 181, 189 (Fla.1991)).

We decline to address the other issues raised by Appellant.

REVERSED and REMANDED.

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


text:
    Gerald GRIMM, Former Husband, Appellant, v. Sheila H. GRIMM, Former Wife, Appellee.
    No. 1D10-5176.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Brian P. North, Fleming Island; Nick James, Jacksonville, for Appellant.
    James G. Roberts of Roberts & Reiter, Jacksonville; Michael J. Korn and Mary C. Coxe of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Gerald Grimm appeals the lower court’s final judgment of dissolution, challenging four aspects of the equitable distribution scheme. We affirm the court’s determination that (I) the funds used to pay the down payment on the marital home, and (II) the remaining funds that were jointly titled, were nonmarital assets belonging to the wife. The court erred, however, by (III) failing to consider the wife’s nonmari-tal assets when determining the issue of alimony, and (IV) dividing the husband’s Social Security benefits as a marital asset.

The lower court considered each of the economic factors listed in section 61.08(2), Florida Statutes (2007), when deciding whether to award alimony to the husband. Factor (2)(d) directs the court to consider the “financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each,” and factor (2)(g) directs the court to consider “[a]ll sources of income available to either party.” The court, however, evaluated only the monthly income from the parties’ retirement plans and their marital assets, omitting any consideration of the wife’s nonmarital assets. This was error. See, e.g., Beck v. Beck, 852 So.2d 934 (Fla. 2d DCA 2003); O’Connor v. O’Connor, 782 So.2d 502 (Fla. 2d DCA 2001), Sasnett v. Sasnett, 679 So.2d 1265 (Fla. 2d DCA 1996); Kendall v. Kendall, 677 So.2d 48 (Fla. 4th DCA 1996); White v. White, 617 So.2d 732, 733 (Fla. 5th DCA 1993); Green v. Green, 542 So.2d 466 (Fla. 5th DCA 1989).

The lower court also awarded a percentage of the husband’s Social Security benefits to the wife. This court held in Johnson v. Johnson, 726 So.2d 393 (Fla. 1st DCA 1999), that benefits from a Social Security replacement plan, like the wife’s in the case at bar, is a marital asset subject to distribution, but that Social Security benefits are not, pursuant to 42 U.S.C. § 407(a). Moreover, the lower court is not permitted to award the nonparticipating spouse other marital property as an offset to counterbalance the participating spouse’s Social Security benefits. Id. at 395-96. Accord Stanley v. Stanley, 956 A.2d 1 (Del.2008); In re Marriage of Crook, 211 Ill.2d 437, 286 Ill.Dec. 141, 813 N.E.2d 198 (2004).

Because we reverse on Issues III and IV, the trial court must revisit its plan of equitable distribution on remand, and we express no opinion as to how the lower court should divide the eligible assets to achieve a just result.

WOLF, DAVIS, and PADOVANO, JJ., concur.

      . The court did not expressly state this in the final order but the wife candidly acknowledged it in her answer brief.


text:
    Sylvania BRANDON, Appellant, v. Wellington Royce THOMAS, Appellee.
    No. 1D10-1457.
    District Court of Appeal of Florida, First District.
    April 15, 2011.
    Albert T. Franson of Franson & Iseley, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

REVERSED and REMANDED. See Skyline Outdoor Commc’ns, Inc. v. James, 903 So.2d 997 (Fla. 1st DCA 2005).

ROBERTS, CLARK, and WETHERELL, JJ., concur.


text:
    Fela LEWIS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and City of Pensacola, Appellees.
    No. 1D10-1142.
    District Court of Appeal of Florida, First District.
    April 15, 2011.

      Felá Lewis, pro se, Appellant.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Appellant, Fela Lewis, challenges the Unemployment Appeals Commission’s af-firmance of the appeals referee’s determination that Appellant was not entitled to unemployment benefits because he was discharged for misconduct connected with work. Absenteeism can rise to the level of misconduct where there is evidence of excessive and unauthorized absenteeism. Mason v. Load King Mfg. Co., 758 So.2d 649, 654 (Fla.2000). In order for an employer to prove excessive, unauthorized absenteeism, the employer must establish a serious and identifiable pattern of absenteeism that is willful. Hamilton v. Unemployment Appeals Comm’n, 880 So.2d 1284, 1286 (Fla. 2d DCA 2004). The employer failed to meet this burden in the instant case because it only established that Appellant had two unauthorized absences during the nearly two years he was employed. We, therefore, REVERSE and REMAND.

DAVIS and HAWKES, JJ., concur; WOLF, J., concurs in result.