author: STEVENSON, J. STEVENSON, J.

text:
    M.I. INDUSTRIES USA INC. and Eromonsele M. Imoisili, Appellants, v. ATTORNEYS' TITLE INSURANCE FUND, INC. and Organized Title, LLC, Appellees.
    No. 4D07-4992.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2009.
    Order Denying Rehearing and Certifying Question in Part May 6, 2009.

      Charles D. Franken of Charles D. Franken, P.A., Plantation, for appellants.
    Aaron C. Wong of Cohen Fox, P.A., Miami, for appellee Attorneys’ Title Insurance Fund, Inc.
   STEVENSON, J.

M.I. Industries USA, Inc. (M.I.) appeals the trial court’s denial of its motion to dissolve an ex parte injunction entered in favor of the Attorneys’ Title Insurance Fund, Inc. (the Fund) enjoining M.I. from transferring or withdrawing funds from its bank accounts and selling or otherwise disposing of any real or personal property. The Fund has filed a cross-appeal contesting the trial court’s decision to release a portion of M.I.’s frozen assets and to increase the injunction bond. Because a claim for money damages fails to provide a sufficient basis for injunctive relief, we reverse the order denying M.I.’s motion to dissolve the injunction and we affirm the Fund’s cross-appeal as moot.

In the action below, the Fund asserted that one of its member-agents participated in illegal land flipping schemes with M.I. and a title company. The member-agent allegedly funneled the substantial profits acquired by these schemes through her attorney’s trust account into M.I.’s bank accounts. Because the title company im-permissibly used the Fund’s title insurance and closing forms to conduct these deals, the Fund maintained that the substantial profits should be preserved so the money would remain available to insure the non-party purchasers. The trial court granted the Fund’s ex parte motion for injunction. Following a hearing, the trial court denied M.I.’s motion to dissolve the injunction, but modified some of its terms. The instant appeal and cross-appeal followed.

Generally, an injunction seeking to freeze a bank account is improper. E.g., Hiles v. Auto Bahn Fed’n, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986) (holding that the loss of money from a bank account does not constitute irreparable harm because that loss can be compensated by money damages). However, injunc-tive relief is appropriate to protect what is asserted to be the res of a trust during the pendency of litigation. Gruder v. Gruder, 433 So.2d 23, 24 (Fla. 4th DCA 1983) (affirming injunction where trustee feared removal of trust’s liquid assets). If the enjoined money remained specifically identifiable in the member-agent’s attorney’s trust account, then the injunction may have been proper. However, because the member-agent transferred the money to M.I.’s bank accounts, commingling the funds, we find the instant injunction improper.

Furthermore, the Fund expressly sought damages in its complaint against M.I. for unjust enrichment. Thus, money damages will suffice to compensate any loss incurred by the Fund. See Weinstein v. Aisenberg, 758 So.2d 705, 706 (Fla. 4th DCA 2000) (holding that where plaintiffs filed a complaint for conversion, unjust enrichment, and injunctive relief, they had an adequate remedy at law). Regardless of the Fund’s allegation that M.I. will dissipate its bank accounts, a judgment for money damages is proper notwithstanding the possibility that it could be uncollectible. See id. at 706 (citing Hiles, 498 So.2d at 999).

Finally, it is improper to enter an injunction preventing a party from using or disposing of its assets prior to the conclusion of a legal action. Briceño v. Bryden Invs., Ltd., 973 So.2d 614, 616-17 (Fla. 3d DCA 2008) (affirming denial of motion to enjoin interest accrued on res of constructive trust). Accordingly, we reverse the trial court’s denial of M.I.’s motion and remand with directions to dissolve the injunction.

KLEIN, J., and KELLEY, GLENN D., Associate Judge, concur.

On Motion for Rehearing and Rehearing En Banc & Motion to Certify Question and to Certify Conflict

STEVENSON, J.

We deny the motion for rehearing and rehearing en banc. The motion points out that temporary injunctions are appropriate in some equitable actions and states that this court “has recognized the use of ‘unjust enrichment’ in causes of action based in law and equity.” To the contrary, this court has squarely held that an action for unjust enrichment is an action at law. See, e.g., Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 386-87 (Fla. 4th DCA 1997).

We grant the motion for certification in part. We agree with the panel in Weinstein v. Aisenberg, 758 So.2d 705 (Fla. 4th DCA 2000), that the current definition of “no adequate remedy at law” can result in an injustice in a case such as this one. See id. at 707-12 (Gross, J., concurring specially). Therefore, we certify the following question as one of great public importance:

INCIDENT TO AN ACTION AT LAW, MAY A TRIAL COURT ISSUE AN INJUNCTION TO FREEZE ASSETS OF A DEFENDANT, WHERE THE PLAINTIFF HAS DEMONSTRATED: (1) THE DEFENDANT WILL TRANSFER, DISSIPATE, OR HIDE HIS/HER ASSETS SO AS TO RENDER A TRIAL JUDGMENT UNENFORCEABLE; (2) A CLEAR LEGAL RIGHT TO THE RELIEF REQUESTED; (3) A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS; AND (4) A TEMPORARY INJUNCTION WILL SERVE THE PUBLIC INTEREST?

DAMOORGIAN, J., and KELLEY, GLENN D., Associate Judge, concur.


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    James O'NEILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5641.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2009.
    Rehearing Denied April 23, 2009.
    Amy C. Settlemire, Tampa, for Appellant.
   FULMER, Judge.

James O’Neill appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the postcon-viction court’s order and remand with instructions to dismiss O’Neill’s motion as untimely.

In 2001, O’Neill was convicted of and sentenced on nine offenses pursuant to a negotiated plea agreement. He appealed, and this court reversed and remanded for the trial court to strike minimum mandatory terms from his sentences on counts seven and nine. O’Neill v. State, 841 So.2d 629 (Fla. 2d DCA 2003). The mandate in his direct appeal was issued on April 28, 2003. O’Neill did not file his rule 3.850 motion seeking to withdraw his plea until September 28, 2005, more than two years after his direct review proceedings were concluded. See Fla. R.Crim. P. 3.850(b) (providing that no motion shall be filed more than two years after the judgment and sentence become final in a non-capital case); Valdes v. State, 904 So.2d 515 (Fla. 3d DCA 2005) (holding that a judgment and sentence are not final for purposes of rule 3.850 until direct review proceedings are concluded).

O’Neill claimed that his rule 3.850 motion was timely because it was filed only thirty days after a resentencing on count six that occurred on August 29, 2005. However, that resentencing was not the result of his direct appeal proceedings but was the result of a successful motion to correct illegal sentence, which did not affect the timeliness of his rule 3.850 motion. See Joseph v. State, 835 So.2d 1221, 1222 n. 3 (Fla. 5th DCA 2003) (“The two-year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered. An illegal sentence may be corrected at any time, and it would make no sense to allow a judgment to be attacked many years after the expiration of the two-year deadline simply because a sentence was corrected pursuant to a rule 3.800(a) motion.”); see also Pierce v. State, 875 So.2d 726, 727 n. 1 (Fla. 4th DCA 2004) (noting the difference between cases “involvefing] re-sentencing on direct appeal” and cases such as Joseph involving “re-sentencing following a post-conviction motion”).

Accordingly, we reverse the order on appeal. On remand, the postconviction court shall dismiss O’Neill’s motion without prejudice to any right he may have to file a belated motion for postconviction relief asserting relief under the exceptions listed in rule 3.850(b), about which we express no opinion. We note that if O’Neill refiles his motion and is successfully able to assert an exception to the two-year requirement, the postconvietion court should consider his claims in light of Spera v. State, 971 So.2d 754 (Fla.2007), of which the postconviction court did not have the benefit at the time it initially denied three of O’Neill’s claims as facially insufficient.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., Concur.


author: EVANDER, J.

text:
    Brian J. SHANK and Alane Rae Shank, Trustees, Appellants, v. Ed HAVILL, Lake County Property Appraiser, Appellee.
    No. 5D08-1068.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2009.
    Rehearing Denied April 13, 2009.

      Edward P. Jordan, II, of Edward P. Jordan, II P.A., Minneola, for Appellant.
    B. Jordan Stuart and Gaylord A. Wood, Jr., of Wood & Stuart, P.A., Bunnell, for Appellee.
   EVANDER, J.

Brian J. Shank and Alane Rae Shank appeal from a final order dismissing their complaint against the Lake County Property Appraiser with prejudice. The trial court found that the Shanks had failed to comply with the conditions precedent set forth in section 194.171, Florida Statutes (2007). We reverse.

The Shanks are the trustees of the Brian John Shank and Alane Rae Shank Inter Vivos Revocable Trust Agreement. The Trust owns property situated in Lake County. On June 1, 2006, the property appraiser issued a Notice of Ad Valorem Taxes which, inter alia, denied an agricultural exemption which the Trust had previously enjoyed. After receiving the notice, the Shanks filed a petition to the Value Adjustment Board. On March 9, 2007, the Value Adjustment Board entered its written decision denying the petition.

On May 4, 2007, the Shanks remitted a check in the amount of $849.49 to the Lake County Tax Collector. Four days later, on May 8, 2007, the Shanks filed their complaint against the property appraiser, contesting the tax assessment. On May 9, 2007, the tax collector returned the check to the Shanks. The tax collector’s accompanying letter provided: “We are returning your check because the Florida Statutes do not allow us to collect a partial payment.... ”

The property appraiser subsequently filed a motion to dismiss the Shanks’ complaint, alleging that they had failed to comply with the jurisdictional conditions precedent set forth in section 194.171. The trial court granted the property appraiser’s motion, finding as follows:

When the Plaintiffs attempted to make their good-faith payment, they failed to indicate their intention to the Tax Appraiser. When the payment was returned, the Plaintiffs failed to take further steps to correct the situation and obtain their receipt.... Section 194.171(6) provides that the requirements of subsections (2), (3), and (5) are jurisdictional. Subsection (3) requires the taxpayer to file a receipt with the payment [sic]. Because the Plaintiffs did not do this, this Court does not have jurisdiction pursuant to subsection (6).

We respectfully disagree with the trial court’s interpretation of section 194.171.

Section 194.171(6) provides that no court shall have jurisdiction in a case challenging a property tax assessment unless the requirements of subsection (2), (3), and (5) are met. Subsection (5) has not been raised as an issue in this case. Subsection (2) required the Shanks to file this lawsuit within sixty days from the date a decision was rendered by the Value Adjustment Board. Here, there is no dispute that the Shanks filed them lawsuit on the sixtieth day. Thus, it is the interpretation of subsection (3) that is central to this appeal. Subsection (3) provides:

Before an action to contest a tax assessment may be brought, the taxpayer shall pay to the collector not less than the amount of the tax which the taxpayer admits in good faith to be owing. The collector shall issue a receipt for the payment, and the receipt shall be filed with the complaint. Notwithstanding the provisions of chapter 197, payment of the taxes the taxpayer admits to be due and owing and the timely filing of an action pursuant to this section shall suspend all procedures for the collection of taxes prior to final disposition of the action.

In its complaint, the Shanks alleged that the $849.49 check it had remitted to the tax collector constituted the amount of taxes they admitted, in good faith, to be owing. The complaint further alleged that the tax collector had not issued a receipt for the payment as required by the statute. The property appraiser does not dispute that the Shanks delivered their check to the tax collector four days prior to the filing of the complaint. Nor does the property appraiser dispute that the tax collector failed to issue a receipt prior to the expiration of the sixty day time period. Nonetheless, the property appraiser contends that the Shanks’ complaint is jurisdictionally barred because there was no receipt from the tax collector attached to the complaint. We reject this argument and agree with our sister court’s conclusion in Mikos v. Parker, 571 So.2d 8 (Fla. 2d DCA 1990), that the filing of the tax collector’s receipt with the court within the applicable sixty day time period is not a jurisdictional prerequisite. As observed in Mikos, the legislature’s obvious objective in enacting the jurisdictional prerequisites was to ensure the continued flow of tax revenue during the extended period of an assessment challenge. This objective is satisfied when the taxpayer makes his good faith payment in a timely manner. To accept the property appraiser’s argument would mean that even where a taxpayer made his good-faith payment on the fh'st day of the sixty-day time period, and otherwise complied with the requirements set forth in section 194.171, he would lose his right to challenge a tax assessment if the tax collector failed or refused, for whatever reason, to timely issue a receipt. We do not believe the Legislature intended such an absurd result.

Alternatively, the property appraiser argues that the Shanks were required to expressly inform the tax collector that their check constituted their good-faith payment and not simply a partial payment of their taxes. Although we agree that the better practice would be for a taxpayer to provide a cover letter to the tax collector expressly reciting that the payment being made is a good faith payment required by section 194.171(3), we cannot find that doing so is statutorily required. The Shanks alleged that their payment of $849.49 constituted what they admitted, in good faith, to be owing. They should be given the opportunity to prove this allegation.

REVERSED and REMANDED.

PALMER, C.J. and TORPY, J., concur.


author: ALTENBERND, Judge.

text:
    Sarah YANKEY, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D08-2045.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2009.

      Eilam Isaak, Tampa, for Petitioner.
    Robin Lotane, General Counsel, Tallahassee, and Jason Helfant, Assistant General Counsel, Miami, for Respondent.
   ALTENBERND, Judge.

Sarah Yankey has filed a petition for writ of certiorari seeking to quash a circuit court order denying her certiorari relief from an order by the Department of Highway Safety and Motor Vehicles suspending her license for driving with an unlawful breath-alcohol level. During the administrative proceedings leading up to the final order suspending Ms. Yankey’s license, Ms. Yankey was denied the opportunity to subpoena the agency inspector responsible for maintaining the breath testing equipment used to test her breath-alcohol level. In denying Ms. Yankey’s petition for writ of certiorari, the circuit court concluded that the Department was not authorized to issue such a subpoena. We conclude the circuit court departed from the essential requirements of the law in interpreting section 322.2615(6)(b), Florida Statutes (2007), to prohibit the Department’s issuance of this subpoena. We therefore grant Ms. Yanke/s petition for writ of certiorari and quash the circuit court’s order.

Ms. Yankey was placed under arrest for driving under the influence of alcohol and agreed to submit to a breath-alcohol test. The results of the test reflected breath-alcohol levels of .158 and .160 grams of alcohol per 210 liters of breath. Ms. Yan-key’s driving privilege was suspended based upon these results.

Ms. Yankey requested a formal administrative review of the suspension. See § 322.2615(6). As part of that review, Ms. Yankey asked the Department to issue a subpoena for a specific law enforcement agency employee who had inspected and tested the breath test machine used to test Ms. Yankey’s breath-alcohol level and who had signed the agency inspection report submitted as part of the documentation to support the license suspension. The Department refused to issue this subpoena, asserting that section 322.2615(6)(b) did not authorize it to do so. The formal review hearing was thus held without this witness, and the hearing officer ultimately sustained the administrative license suspension.

Ms. Yankey sought review with the circuit court. See § 322.2615(13). The circuit court denied the petition, agreeing that section 322.2615(6)(b) did not authorize the issuance of the subpoena to the agency inspector. Ms. Yankey now petitions this court for a writ of common law certiorari, seeking to quash the circuit court order. We conclude the circuit court departed from the essential requirements of the law in holding that section 322.2615(6)(b) did not authorize the Department to issue this subpoena.

This is a “second-tier” certiorari proceeding, in which we are limited to determining whether the circuit court afforded the parties procedural due process and whether it “applied the correct law” or “departed from the essential requirements of the law.” See, e.g., Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So.2d 1247, 1249 (Fla. 2d DCA 2006); see also Dep’t of Highway Safety & Motor Vehicles v. Roberts, 938 So.2d 513 (Fla. 5th DCA 2006). As explained in Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003), second-tier certiorari should not be used simply to grant a second appeal, but should be reserved for those situations when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. See also Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995). In this case, we conclude certiorari relief is appropriate because the circuit court departed from the essential requirements of the law in interpreting section 322.2615(6)(b) to prohibit the issuance of a subpoena for the agency inspector. Moreover, this error results in a miscarriage of justice because it establishes a rule of general application in license suspension hearings within the circuit that may deprive drivers of appropriate process in these administrative hearings.

Section 322.2615(1) expressly permits a law enforcement officer, on behalf of the Department, to administratively suspend a driver’s license when the person is driving while having an unlawful breath-alcohol level. If an officer does this, section 322.2615(2) requires the officer to forward to the Department, within five days, certain documents supporting the officer’s actions. These documents must include “the results of any breath or blood test.” § 322.2615(2).

Section 322.2615(1)(b)(3) permits a driver whose license has been administratively suspended in this manner to request a formal review hearing. Pursuant to section 322.2615(6)(b):

Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension.

(Emphasis added.) “Subsection (2),” as referred to here and as discussed above, refers to documents that the officer who suspended the license must provide to the Department, including “the results of any breath test.” § 322.2615(2).

Section 322.2615(7)(a) explains the tasks then assigned to the hearing officer in such a formal review. The hearing officer must determine two issues by a preponderance of the evidence:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of the motor vehicle in this state while under the influence of alcoholic beverages ....
2. Whether the person whose license was suspended had an unlawful ... breath-alcohol level of 0.08 or higher....

Section 322.2615(11) explains:

The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents related to the administration of a breath test.... However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.

To reiterate, then, in an attempt to keep these various subsections of section 322.2615 straight, subsection (6)(b), as referenced in section 322.2615(11), permits the hearing officer to issue subpoenas “for the officers and witnesses identified in documents in subsection (2).” Subsection (2) refers to those records the officer was required to provide to the Department, including “the results of any breath or blood test.” That is, in a formal review hearing the driver may subpoena those witnesses who are identified in documents submitted by the arresting officer, which documents include the results of any breath test.

Although section 822.2615(2) requires the officer to submit “breath test results,” it does not indicate the format or information that must be included for these results. It is thus unclear what specific documents are appropriate and constitute “breath test results.” In this case, the officer submitted to the Department documents that included an “agency inspection report — FDLE/ATP FORM 40 — March 2004,” signed by the agency inspector — the person Ms. Yankey sought to subpoena. The question presented here is whether this document is a part of the “breath test results” referred to under section 322.2615(2), thus permitting the Department to issue a subpoena to the agency inspector identified in this report pursuant to section 322.2615(6)(b).

This standardized agency inspection report form was created to implement section 316.1932, Florida Statutes (2007), which is entitled “Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal.” Section 316.1932(1)(a)(2) states that the Alcohol Testing Program within the Department of Law Enforcement “is responsible for the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327” and requires the Program to promulgate rules and regulations regarding the testing. Section 316.1932(1)(b)(1) sets forth the proper criteria for measuring blood- and breath-alcohol levels, and (b)(2) provides: “An analysis of a person’s breath, in order to be considered valid under this section, must have been performed substantially according to the methods approved by the Department of Law Enforcement.” (Emphasis added.)

The methods approved by the Department of Law Enforcement include Florida Administrative Code rule 11D-8.003, entitled “Approval of Breath Test Methods and Instruments.” This rule states, “A Department inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy and reliability of an evidentiary breath test instrument.” Rule 11D-8.004, entitled “Department Inspection and Registration of Breath Test Instruments,” states in subsection (1): “The Department shall register and inspect a breath test instrument prior to such instrument being initially placed into evidentiary use by an agency. The inspection validates the instrument’s approval for evidentiary use....” Finally, rule 11D-8.006 requires such breath test instruments to be inspected monthly and specifically requires the use of certain forms for the report, including “FDLE/ATP Form 40.”

Construing these provisions together, under sections 316.1932(1)(a)(2) and (b)(2), a breath test result is valid for purposes of chapter 322, and specifically section 322.2615, if performed substantially according to methods approved by the Department. The Department requires the breath test be conducted on a breath test instrument that has been registered for evidentiary use. Further, the Department requires that instrument to be inspected monthly. Traditionally, then, a practice has been established in which law enforcement routinely provides to the Department a breath alcohol analysis report, a breath test affidavit, and an agency inspection report in order to report the results of the breath test and thus support the license suspension for an unlawful breath-alcohol level.

Notably, section 316.1934(5) provides that an affidavit containing breath test results “is admissible in evidence under the exception to the hearsay rule in s. 90.803(8)” without further authentication “and is presumptive proof of the results” if the affidavit discloses five specific items, including “the date of performance of the most recent required maintenance” if the test was administered by means of a breath testing instrument. § 316.1934(5)(e).

In this case, we need not address what specific documentation is required to constitute “breath test results” that will support an administrative license suspension. In light of the statutory and administrative code provisions regarding the proper procedures to establish the validity of breath test results, we conclude that when the officer who administratively suspends a person’s license submits breath test results pursuant to section 322.2615(2) that include the breath alcohol analysis report, a breath test affidavit, and an agency inspection report, and those documents identify specific persons, the hearing officer is authorized under section 322.2615(6)(b) to issue a subpoena to any person “identified in” those documents. The circuit court thus departed from the essential requirements of the law in concluding the Department was not authorized to issue a subpoena for the agency inspector.

Moreover, this is the type of error that results in a miscarriage of justice meriting certiorari review. Section 322.2615 provides a driver the right to challenge a license suspension through an administrative proceeding. Although the procedure for the administrative review is strictly circumscribed by the statute, the procedure includes a certain level of due process to challenge the documentation submitted by the Department. When the Department relies upon a document prepared by an agency inspector to properly validate the breath test results, the statute permits the driver to subpoena the inspector identified in that document in an effort to overcome the statutory presumption that this otherwise hearsay document is proper proof for the issues to be resolved by the hearing officer. We therefore grant Ms. Yankey’s petition for writ of certiorari and quash the circuit court order.

Petition granted; circuit court order quashed.

CASANUEVA and WALLACE, JJ., Concur.

      . Section 322.2615(13) creates a statutory right of review “by petition for writ of certio-rari to the circuit court.” Technically, this review is not a review under the circuit court’s constitutional jurisdiction to issue writs of common law certiorari. Instead, it is a direct review of an "administrative action prescribed by general law.” See art. V, § 5(b), Fla. Const. In contrast, this court reviews the circuit court order under its common law certiorari jurisdiction. See art. V, § 4(b)(3), Fla. Const.

      . A related issue is raised in Department of Highway Safety & Motor Vehicles v. Maffett, 1 So.3d 1286 (Fla. 2d DCA 2009), which we issue simultaneously with this opinion. In Maffett, however, the circuit court granted Mr. Maffett's petition for certiorari, concluding that the Department was required to issue a subpoena to the agency inspector. The Maffett case is thus in a different procedural posture and the nature of certiorari review requires two distinct analyses.

      . As noted in footnote one, Maffett involves an opinion from the same circuit court reaching an opposite conclusion than the conclusion reached by the circuit court in this case, thus creating a conflict within the circuit.

      . Although this statute appears directed at civil or criminal proceedings, this court has expressly referenced the statute in analyzing an administrative license suspension case. Dep’t of Highway Safety & Motor Vehicles v. Falcone, 983 So.2d 755, 757 (Fla. 2d DCA 2008). In Falcone, we quashed a circuit court order granting certiorari to a driver because we concluded that although the Department was required to present evidence of the most recent breath test instrument inspection, it had done so by providing an agency inspection report. This opinion at least suggests that the breath test results would not have been admissible in the administrative proceeding without the agency inspection report or some other document to establish the date of the most recent required inspection.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Eric ESCOBIO, Respondent.
    No. 2D08-1155.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2009.
    Rehearing Denied March 27, 2009.

      Robin Lotane, General Counsel, Tallahassee, and Damaris E. Reynolds, Assistant General Counsel, Miami, for Petitioner.
    Eilam Isaak, Tampa, for Respondent.

      . Because section 316.1932 is not directly implicated in this case, we do not find ourselves in direct conflict with Pelham.

   ALTENBERND, Judge.

The Department of Highway Safety and Motor Vehicles seeks certiorari review of a circuit court opinion quashing an administrative order suspending Eric Escobio’s driver’s license for driving with an unlawful breath-alcohol level. The circuit court granted Mr. Escobio’s petition for certiora-ri and quashed the Department’s order on two separate bases. First, the circuit court held that the Department departed from the essential requirements of the law by interpreting section 322.2615(6)(b), Florida Statutes (2006)* to prohibit the hearing officer from issuing a subpoena for the agency inspector responsible for maintaining the breath testing equipment used to test Mr. Escobio’s breath-alcohol level. Second, the circuit court held that the hearing officer for the Department departed from the essential requirements of the law by refusing to consider the legality of the stop of Mr. Escobio’s vehicle when assessing whether the license suspension was proper.

As to the circuit court’s first basis for granting the petition, in Yankey v. Department of Highway Safety & Motor Vehicles, No. 2D08-2045, 6 So.3d 633, 2009 WL 416514 (Fla. 2d DCA Feb. 20, 2009), an opinion we issue simultaneously with this opinion, we have concluded that section 322.2615(6)(b) and related statutory and administrative provisions require the Department to issue a subpoena to the agency inspector when the agency inspector is identified in documents submitted to the Department to validate the breath test results. Based upon the reasoning in Yan-key, we conclude the circuit court in this case applied the correct law in granting Mr. Escobio’s petition for writ of certiorari and quashing the order suspending his license on this basis. See also Dep’t of Highway Safety & Motor Vehicles v. Maffett, 1 So.3d 1286 (Fla. 2d DCA 2009). Were this the only issue raised in this proceeding, we would deny certiorari.

Nevertheless, we grant the Department’s petition for writ of certiorari because the circuit court departed from the essential requirements of the law in concluding that the hearing officer performing the formal administrative review hearing was required to address whether Mr. Escobio was placed under lawful arrest for a violation of section 316.193, Florida Statutes (2006). Pursuant to section 322.2615(7)(a), Florida Statutes (2006), the hearing officer’s review is limited to determining only (1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of the vehicle while under the influence of alcoholic beverages and (2) whether the person had an unlawful breath- or blood-alcohol level. We therefore quash that portion of the circuit court’s order granting Mr. Escobio’s petition for writ of certiorari on this issue.

This issue centers on recent amendments to section 322.2615. Prior to October 1, 2006, section 322.2615(1)(a), Florida Statutes (2005), required a law enforcement officer to “suspend the driving privilege of a person who has been airested by a law enforcement officer for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level.” (Emphasis added.) A driver whose license was suspended in this manner could request a formal review pursuant to section 322.2615(6). Under section 322.2615(7)(a), the scope of this formal review was limited to three issues: (1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of the vehicle while under the influence of alcoholic beverages, (2) whether the person was placed under lawful arrest for a violation of section 316.193, and (3) whether the person had an unlawful breath- or blood-alcohol level.

Effective October 1, 2006, however, the Florida Legislature amended these provisions. See ch. 2006-290, §§ 45, 51, at 2957, 2965, Laws of Fla. Section 322.2615(1)(a), Florida Statutes (2006), now requires a law enforcement officer to “suspend the driving privilege of a person who is driving or in actual physical control of a motor vehicle and who has an unlawful blood-alcohol or breath-alcohol level.” The statute no longer refers to “a person who has been arrested.” More important, section 322.2615(7)(a) now limits the scope of the administrative review to two issues: (1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of the vehicle while under the influence of alcoholic beverages, and (2) whether the person had an unlawful breath- or blood-alcohol level. The statute no longer permits the hearing officer to consider “[wjhether the person was placed under lawful arrest for a violation of s. 316.193.” § 322.2615(7)(a)(2), Fla. Stat. (2005).

Mr. Escobio was arrested for driving under the influence of alcohol on October 6, 2006, five days after the effective date of the amended statute. He submitted to a breath-alcohol test on that date. The test results indicated breath-alcohol levels of .145 and .143 grams of alcohol per 210 liters of breath. These results led to the administrative suspension of Mr. Escobio’s license. That suspension is thus governed by the statute as amended on October 1, 2006.

Mr. Escobio does not dispute that the amended statute applies in this case, nor does he challenge the validity of the amended statute. Rather, he argued to the circuit court and now argues to this court that the interplay of sections 316.1932, Florida Statutes (2006), and section 322.2615, as amended, continue to permit the hearing officer to consider the legality of the arrest in determining whether to sustain the administrative license suspension. In the certiorari proceeding before this court, Mr. Escobio relies in large part upon the Fifth District’s opinion in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304 (Fla. 5th DCA), rev. denied, 984 So.2d 519 (Fla.2008).

In Pelham, Jesse Pelham’s license was suspended after he refused to take a breath-alcohol test. 979 So.2d at 305. Pelham requested a formal administrative hearing and sought to challenge the legality of his arrest in that proceeding. The hearing officer refused to consider this issue in light of the 2006 amendments to section 322.2615(7). In Pelham, the amendments at issue were those in subsection (7)(b), involving the scope of the administrative hearing when the driver’s license was suspended for refusing to take a breath-alcohol test. Like the amendments to subsection (7)(a) discussed above, subsection (7)(b) was also amended by chapter 2006-290, section 45, to remove a provision that permitted the hearing officer to consider “[w]hether the person was placed under lawful arrest for a violation of s. 316.193” when assessing whether a license was properly suspended for refusing to take a breath-alcohol test. See id. at 306.

The Fifth District acknowledged that the amended provisions of section 322.2615(7)(b) applied in Pelham. Nevertheless, the Fifth District noted that Pel-ham’s “consent” to a breath-alcohol test was implied under the provisions of section 316.1932(1)(a)(1)(a), Florida Statutes (2007):

This statute, sometimes referred to as the Implied Consent Law, provides that any person who accepts the privilege of operating a motor vehicle in this state is deemed to consent to testing to determine the “alcoholic content of his or her blood or breath if the person is lawfully arrested -” § 316.1932(1)(a)(1)(a), Fla. Stat. (2007) (emphasis added). The statute further states that the test “must be incidental to a lawful arrest and administered at the request of a law enforcement officer.... ” Id. Thus, a lawful arrest must precede the administration of the breath test. State, Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163, 1167 (Fla. 5th DCA 2003). It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.

Pelham, 979 So.2d at 305-306.

The Fifth District concluded that sections 316.1932 and 322.2615 were interdependent and had to be read in pari mate-ria. In that context, the Fifth District concluded that “a suspension may not be predicated on refusal to take a test that is the product of an unlawful arrest.” Id. at 307. See also Hernandez v. Dep’t of Highway Safety & Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008). As a result, the Fifth District denied the Department’s petition for writ of certiorari seeking to quash a circuit court order granting Pel-ham certiorari relief.

This court has recently rejected the reasoning of Pelham and certified conflict with the opinion. See McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008). In McLaughlin, a case also involving the driver’s refusal to submit to a breath-alcohol test, we concluded that the plain language of section 322.2615(7)(b) limits the hearing officer’s scope of review and excludes any consideration of the lawfulness of the arrest and that that section could not be read in pari materia with section 316.1932 to create an ambiguity that did not exist.

Moreover, Pelham, Hernandez, and McLaughlin all involve license suspensions based upon the driver’s refusal to submit to a breath-alcohol test. These cases specifically address whether the driver may be penalized under section 316.1932(1)(a)(1)(a) for the refusal if the request was somehow improper. Here, Escobio submitted to a breath-alcohol test, and that test revealed an unlawful breath-alcohol level. He has not been penalized solely for refusal to submit to the test. He has pointed to no authority suggesting that the manner in which his consent was obtained invalidates the consent or to any authority that would invalidate or render inadmissible the results of such a test in an administrative proceeding based upon the manner in which the consent was obtained. Rather, the plain language of section 322.2615 requires the suspension of a driver’s license when that driver is shown to have operated a motor vehicle while having an unlawful breath-alcohol level. It limits the driver’s administrative review of the suspension to these two issues. § 322.2615(1)(a), (7)(a). Section 316.1932 is not implicated under these circumstances.

We thus conclude the circuit court departed from the essential requirements of the law in holding that the hearing officer was required to consider the legality of Mr. Escobio’s arrest when reviewing the suspension of Mr. Escobio’s license for driving with an unlawful breath-alcohol level. The circuit court was compelled to comply with section 322.2615(7)(a), as amended effective October 1, 2006. Moreover, to the extent the circuit court’s opinion would require hearing officers in license suspensions to expand their scope of administrative review beyond the confines of the statute, this error is the type of error that results in a miscarriage of justice and is thus appropriate for certiorari review. Dep’t of Highway Safety & Motor-Vehicles v. Snelson, 817 So.2d 1045, 1048 (Fla. 2d DCA 2002).

Petition granted in part; denied in part.

CASANUEVA and WALLACE, JJ., concur.

      . Although section 322.2615(7)(a) limits the scope of the administrative review in this manner, the statute obviously does not affect a driver's ability to challenge the lawfulness of his arrest in a criminal proceeding arising from the same circumstances or the legality of law enforcement’s actions in a civil proceeding.

      . The Fifth District’s opinion in Pelham had not issued at the time tlte circuit court issued its opinion in this case. However, in his petition for writ of certiorari to the circuit court, Mr. Escobio relied upon the circuit court opinion leading to Pelham.


author: WALLACE, Judge.

text:
    In the Interest of G.C., K.C., and children. J.C. and G.P.-B., Appellants, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    Nos. 2D08-1409, 2D08-1416.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2009.
    Rehearing Denied April 21, 2009.

      David A. Dee, Tampa, for Appellant J.C.
    Ingrid Anderson, Clearwater, for Appellant G.P.-B.
    Bill McCollum, Attorney General, Tallahassee, and Kelley R. Schaeffer, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Thomas Wade Young, Appellate Counsel, Orlando, for Appellee Guardian ad Li-tem Program.
   WALLACE, Judge.

J.C. (the Father) and G.P.-B. (the Mother) appeal a final judgment that terminated their parental rights to their children. Because the Department of Children and Families (DCF) did not prove a ground for termination by clear and convincing evidence, we reverse the final judgment of termination and remand for further proceedings.

I. THE FACTS

A. Background

DCF sought to terminate the Father’s parental rights to K.C., born April 24, 2003, and G.C., born April 21, 2004. DCF also sought to terminate the Mother’s parental rights to K.C. and G.C. and to the Mother’s other child, J.P.-B., born January 16, 2001. The Father and the Mother are the unmarried parents of K.C. and G.C. The Father, J.C., is not J.P.-B.’s father; that child has a different father.

On August 3, 2005, DCF filed an emergency shelter petition for the three children that alleged that the children had been abused, neglected, or abandoned. In particular, the petition alleged that while the Mother slept, slipped out of the house early in the morning and walked down the street unsupervised. J.P.-B. did not sustain any injuries during this incident. Afterward, the parents separated and the Mother moved in with her mother (the maternal grandmother). After the Mother was arrested for burglary and criminal mischief, the maternal grandmother called DCF because she could not care for the children. The circuit court ordered that the three children be placed in shelter care.

Subsequently, DCF filed a petition for dependency alleging that (1) the Mother allowed the children to be deprived of necessary food, clothing, shelter, or medical treatment; (2) the Mother allowed J.P.-B. to walk around the neighborhood unsupervised; (3) the Father abandoned K.C. and G.C.; and (4) the Father could not parent KC. and G.C. because he lacked appropriate housing. On February 27, 2006, the three children were adjudicated dependent as to the Mother because (1) she was unable to obtain suitable housing for herself and the children and (2) she let J.P.-B. walk around the neighborhood unsupervised. On the same date, KC. and G.C. were adjudicated dependent as to the Father because he had “no appropriate housing for the children.” The parents consented to the adjudications of dependency.

The initial and updated case plans had a goal of reunification. Both case plans required the parents to (1) maintain adequate housing for a period of no less than six months; (2) demonstrate stability in their ability to provide necessary food, shelter, and clothing; (3) participate in visitation; (4) successfully complete an approved parenting program; (5) maintain a clean home; (6) provide optimal health care to the children; (7) provide optimal educational benefits to the children; (8) discipline the children without threat of harm; (9) provide safe and adequate supervision over the children at all times; (10) complete an approved domestic violence evaluation and improve child/family safety; (11) reimburse the State for the cost of care provided to the children; (12) commit no further law violations; and (13) ensure the children’s safety. The case plans also required the Mother to (1) establish J.P.-B.’s paternity and (2) complete an anger management program and control aggressive outbursts. The initial plan required both parents to complete a mental health assessment, but the updated plan only required a mental health assessment for the Mother.

Thereafter, the Mother did not complete her mental health tasks. She told the guardian ad litem that the Father had hit her in April 2006, but the guardian ad litem did not observe any injuries on the Mother. In April and June 2007, the police responded to two incidents where the Mother gave sworn written statements alleging that the Father had battered her. On both occasions, the police took photographs showing bruises to the Mother’s face and torso. The Father was initially arrested after each incident but was subsequently released when the charges were dismissed. The Mother obtained an injunction against the Father in 2007.

On September 19, 2007, DCF filed a petition for termination of parental rights as to both parents. This petition alleged that the Mother had been offered services through a case plan but that she had failed to complete the case plan tasks related to parenting, anger management, domestic violence, and stable employment. For this reason, DCF requested that the Mother’s parental rights be terminated under subsections 39.806(l)(c) and (e), Florida Statutes (2007). The petition also requested termination of the Father’s parental rights as authorized by the same statutory subsections because the Father failed to complete a domestic violence evaluation after an incident of domestic violence.

B. The Termination Hearing

The termination hearing took place over three separate days. On the first day, the Mother testified that J.P.-B. and K.C. were removed from her care in 2003 after she “smacked [J.P.-B.] on the face” but were returned within five months. The Mother explained that in 2005 the children were not adjudicated dependent because of domestic violence but because she could not provide them with necessary food, clothing, and shelter after she was jailed. The Mother stated that she was currently living with the Father, who had inherited a house and was earning enough to pay the mortgage.

The Mother denied all domestic violence except for an incident in June 2005 that did not occur in the children’s presence. The Mother admitted that she obtained an injunction against the Father in 2007 but testified that her written statements to the police in April and June 2007 were false. The Mother claimed that she made the false statements based on a relative’s advice to obtain a restraining order against the Father and otherwise get him into trouble so that DCF would return the children to her. The Mother did not tell her counselors that she was in a relationship involving domestic violence.

The Mother admitted that she had been diagnosed as bipolar. She had been prescribed medications as a teenager but did not have a current prescription. The Mother conceded that she had not completed her mental health tasks because she did not like her new therapist.

The Father testified that he had completed all case plan tasks, including a mental health evaluation. The Father owned a house and was able to pay the mortgage and support the family. The Father admitted that he had a domestic violence conviction based on the June 2005 incident, but he denied that any domestic violence took place in April or June 2007. He explained that the Mother had fabricated those allegations and that the charges related to those incidents had been dismissed.

On June 3, 2007, Deputy William Baker responded to the Mother’s initial complaint. He testified that the Mother had a black eye on the day of the incident but that this injury was almost healed. He was concerned about the veracity of the Mother’s written statement because the injury was old and the Father’s hands showed no injuries consistent with the Mother’s allegations. Deputy Baker explained that no action was taken because there was no evidence to substantiate the Mother’s claims.

Mr. Patrick Mital, the guardian ad litem originally assigned to the children, testified that the Mother told him that the Father had hit her in April 2006. However, he did not see any injuries to the Mother on that date and he never witnessed any domestic violence. He also indicated that the Mother said that she was pursuing an injunction against the Father because of his aggressive behavior. Mr. Mital opined that the children should not be returned to the parents’ unstable home because the Mother’s statements showed that the parents had not significantly improved.

Mr. Michael A. Cribbs, the guardian ad litem who succeeded Mr. Mital, observed that the parents and the children loved each other and that visitations went well. Mr. Cribbs also indicated that the Mother had never been required to undergo a psychiatric evaluation. Nevertheless, he expressed his concerns about the domestic violence incidents and recommended termination of parental rights under section 39.806(l)(c).

The case manager, Roxane Hafer, testified that the Mother had complied with all case plan tasks — including the stable housing and financial stability requirements— except for the mental health tasks. She also indicated that the Father had completed all case plan tasks but had further law violations. Ms. Hafer recommended termination because of ongoing domestic violence issues. She did not witness any domestic violence and relied on the Mother’s written statements regarding the April and June 2007 incidents and the Mother’s statements to Mr. Mital. Ms. Hafer also detailed her concerns about the Mother’s mental health. She testified that the Mother self-reported a history of mental health issues. Ms. Hafer referred the Mother for individual therapy. Although she never saw any documents indicating that the Mother had been prescribed psychiatric medications, Ms. Hafer offered the Mother a referral for psychiatric medications, but the Mother would not accept it.

Dr. Filomena Ferrara conducted a psychological evaluation of the Father. Dr. Ferrara testified that she read the police reports regarding the April and June 2007 incidents and that the parents had explained that the allegations were false and the charges had been dismissed. Dr. Fer-rara said that the parents minimized the existence of violence. She noted that the Father did not suffer from any mental illness and did not need psychological treatment. Dr. Ferrara indicated that her records did not show that the children had been placed in danger. She saw no harm in reunifying the children with the Father if some in-home services were provided. However, she did not recommend reunification if both parents were together unless there was additional intervention.

Dr. Michael K. Johnson testified about his psychological evaluation of the Mother. Dr. Johnson expressed concerns about the Mother’s self-reported history of mental health issues. Dr. Johnson testified that he could nof determine if the Mother needed medication because no psychiatric care or evaluation had been recommended for her. Dr. Johnson pointed out that the Mother’s character deficiencies and mental health issues could be addressed by psychiatric counseling and treatment, but he later indicated that the Mother was not receptive to treatment. According to Dr. Johnson, she told him that she did not want to participate in mental health services. We note that Dr. Johnson recommended psychiatric care for the Mother during the termination hearing, but he did not discuss this recommendation with the Mother before the hearing. Thus the Mother never had an opportunity to reject Dr. Johnson’s recommendation. Dr. Johnson ultimately recommended termination unless the mother would “genuinely and openly enter into” psychiatric treatment.

Dr. Johnson reviewed the police reports regarding the April 2007 incident. He stated that the Mother told him she had lied about this incident. He explained that the children would have been negatively impacted if they were present when the domestic violence incidents occurred. He also testified that the domestic violence would have a detrimental effect on the Mother’s parenting ability if it occurred after services had been provided. Dr. Johnson also opined that his concerns would not be allayed if the Mother’s allegations of domestic violence had been false, because her lies could negatively affect the children.

On the third day of the hearing, the Mother testified that she had moved out of the Father’s residence because of Dr. Fer-rara’s opinion recommending reunifying the children with the Father. The Mother indicated that she planned to live with the Father and the children but that she was willing to delay her return. She also stated that she was willing to follow Dr. Johnson’s recommendations, including any therapy and counseling.

C. The Court’s Order

The circuit court ruled that termination was not appropriate under section 39.806(1)(c) because DCF had not proven by clear and convincing evidence that the parents’ continuing involvement in the children’s lives posed a risk to the children despite the provision of services. In particular, the court noted that it could not determine whether any provision of services would be futile.

However, the circuit court terminated the parental rights of the Mother and Father for substantial noncompliance as authorized by section 39.806(1)(e) because it found by clear and convincing evidence “that neither parent ha[d] completed his or her case plan.” The court explained that to determine whether the parents were in “substantial compliance,” as defined in section 39.01(71), it had to determine whether the problems which caused the case to be filed had been ameliorated. The circuit court found that the children were removed from the parents’ care because the parents could not provide supervision and care since the Father lacked appropriate housing and the Mother had been arrested and evicted. Although the circuit court determined that the parents had stable housing and could financially support the children, it concluded that the parents had not substantially complied with their case plans because (1) they had not eliminated household violence, (2) the Mother had not completed her mental health tasks, and (3) the Mother had not completed her anger management tasks. The court also indicated that the Mother’s mental health issues contributed to the volatility of the parents’ relationship. According to the circuit court, “[t]hese parents have yet to engage in meaningful services in that they have denied their [domestic violence], denied their angry natures!,] and otherwise thwarted all efforts to assist them.”

Each of the parents appealed the order terminating their parental rights. On our own motion, we consolidated the parents’ cases.

II. THE LEGAL BACKGROUND

To grant a petition for termination of parental rights, the circuit court must find that DCF proved the allegations supporting termination by clear and convincing evidence. E.E.A. v. Dep’t of Children & Family Servs., 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003). The circuit court must first find grounds for termination of parental rights under section 39.806 and then must consider the manifest best interests of the child under section 39.810. Rathburn v. Dep’t of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). In addition, DCF must establish that termination of parental rights is the least restrictive means of protecting the child from harm. E.E.A., 846 So.2d at 1251-52. On appeal, the circuit court’s ruling should be affirmed if, upon the evidence presented to the circuit court, there is any principle or theory of law that would support the circuit court’s judgment terminating parental rights. G.W.B. v. J.S.W., 658 So.2d 961, 967 (Fla.1995).

III. DISCUSSION

A. Substantial Noncompliance

The Parents argue that the circuit court erred when it found that they did not substantially comply with their case plan because the reasons for the case plan had been remedied. In response, DCF contends that (1) the Mother was in substantial noncompliance because “[s]he failed to properly address her mental health issues and maintained a relationship that was plagued by a history of domestic violence” and (2) the Father was in substantial noncompliance because “he had not forthrightly participated in the services required by the children’s case plan.”

The circuit court found that DCF had proven by clear and convincing evidence that both parents’ rights should be terminated as authorized by section 39.806(1)(e) because “neither parent has completed his or her case plan.” Section 39.806(1)(e)(1) provides that parental rights can be terminated when “[t]he child continues to be abused, neglected, or abandoned by the parents.” The statute presumes that the parent’s failure to “substantially comply” with the case plan for a period of twelve months after the child is adjudicated dependent constitutes evidence of “continuing abuse, neglect, or abandonment” unless the failure to “substantially comply” was due to the parent’s lack of financial resources or DCF’s failure to make reasonable efforts toward reunification. Id. “ ‘Substantial compliance’ means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” 39.01(71) (emphasis added); E.R. v. Dep’t of Children Family Servs., 937 So.2d 1196, 1198 (Fla. 3d DCA 2006).

The circumstances which caused the creation of the case plan for the Mother were lack of housing and inadequate supervision of J.P.-B. With respect to the Mother, the dependency order recited that the factual basis for the adjudication of dependency was that the Mother (1) neglected the children because she “was arrested as [DCF] was attempting to assist [her] in obtaining suitable housing for herself and the children” and (2) provided inadequate supervision of J.P.-B. The Mother’s case plan states that “[t]he children were sheltered as neither parent has stable housing.” The petition for termination of parental rights indicates that the children were originally sheltered “due to the [M]other’s inability to provide them with necessary food, clothing[,] and shelter.” The circuit court’s written order found that “[t]he three children were ultimately removed in August[ ] 2005 when the Mother was arrested for burglary and criminal mischief and evicted from her home” and “this case originated due to an incarcerated/evicted/abusive mother.”

Similarly, the circumstance which caused the creation of the case plan as to the Father was a lack of housing. With respect to the Father, the dependency order recited that the factual basis for the adjudication of dependency was that the Father was “not capable to parent the children, as. he currently has no appropriate housing for the children.” The Father’s case plan states that “[t]he children were sheltered as neither parent has stable housing.” The circuit court’s written order found that “[t]he factual basis for the dependency as to the Father was that ‘he currently has no appropriate housing for the children ... the children have no parent capable of providing supervision and care.’ ” (Omission in original.)

Nevertheless, DCF claims that “[t]he children were sheltered because [of] the Mother’s mental health issues and her failure to recognize the impact the domestic violence had on the family.” Along these lines, the circuit court found that “the problems which brought this case into care have [not] been ameliorated” because “domestic violence, continues in this relationship and ... the parents have not ben-efitted from remediation.” This was error because “the ‘substantially comply’ language contained in section [39.806] ... is a term of art [that] requires more than just a determination that the case plan has not been completed.” B.L. v. Dep’t of Children & Families, 950 So.2d 1264, 1266 (Fla. 5th DCA 2007).

Instead, the proper inquiry should have been whether the lack of housing and inadequate supervision of J.P.-B. “ha[d] not been significantly remedied to the extent that the well being and safety of [J.P.-B., G.C., and K.C.] will be endangered upon the ehild[ren] ... being returned to the parents.” Id. The circuit court found that the parents had stable housing, the Mother was applying for disability benefits due to her asthma, and the Father worked regularly, earning between $2000 to $6000 monthly. The parents finished a parenting class and visited as often as possible with the children. Above all, there was no indication that domestic violence caused any harm to the children because the children were not present when the alleged incidents occurred. See § 39.01(31)(i) (defining “harm” to a child as “violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child”). Thus the circuit court erred in finding that DCF proved by clear and convincing evidence that the parents’ rights should be terminated under section 39.806(1)(e).

The Guardian ad Litem Program argues for affirmance based on A.W. ex rel. B.W. v. Department of Children Families, 969 So.2d 496 (Fla. 1st DCA 2007). In that case, DCF sought to terminate A.W.’s parental rights under subsections 39.806(1)(b), (c), or (e), Florida Statutes (2006). Id. at 498. The First District explained that A.W.’s technical compliance did not indicate that she had substantially complied with her case plan because she had not significantly remedied one of the reasons why her child was adjudicated dependent, i.e., A.W.’s inability to learn basic parenting skills. Id. at 497-98. Unlike in A.W., here, the parents remedied the lack of housing, which was the original reason why the children were first sheltered and then adjudicated dependent. Moreover, this case is also distinguishable because the First District affirmed the termination of the mother’s parental rights in A.W. based on section 39.806(1)(c). See id. at 503-04. For the reasons explained below, we cannot affirm the trial court’s ruling based on section 39.806(1)(c).

Because DCF did not establish that the lack of housing and inadequate supervision issues had not been significantly remedied to the extent that the well-being and safety of the children would be endangered upon their return to the parents, the circuit court erred when it terminated the parental rights of the Mother and the Father under section 39.806(1)(e).

B. Continuing Involvement

Because we must affirm the termination of parental rights if any principle or theory of law supports the circuit court’s decision, G.W.B., 658 So.2d at 967, we consider whether DCF presented clear and convincing evidence for termination under section 39.806(1)(c).

Section 39.806(1)(c) authorizes the termination of parental rights “[w]hen the ... parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the ... parents in the parent-child relationship threatens the life, safety, well-being, or ... health of the children] irrespective of the provision of services.” “In essence, the ... court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.” R.W.W. v. State, Dep’t of Children & Families, 788 So.2d 1020, 1023 (Fla. 2d DCA 2001). Termination under section 39.806(1)(e) requires two specific findings: “first, that continued interaction with the parent threatens the life, safety, or health of the child, and second, that this threat cannot be remedied by the provision of services.” T.H. v. Dep’t of Children Family Servs., 979 So.2d 1075, 1082 (Fla. 2d DCA 2008).

We cannot affirm under section 39.806(1)(c) for two reasons. First, we are not convinced that continued interaction with the parents threatens the children. DCF’s only allegation of harm was that the parents have forced the children to live without them in foster care. The children’s placement in foster care, by itself, did not threaten their life, safety, or health. Granted, the circuit court’s order indicates that the children have suffered abuse while in foster care and the parents “fail to take any responsibility for their children being placed in harm’s way.” Nevertheless, any abuse inflicted while in foster care is the direct result of DCF’s placement of the children with the particular foster care providers and cannot be the basis for termination under section 39.806(1)(c). See E.E.A., 846 So.2d at 1252.

DCF did not establish that the alleged domestic violence and the Mother’s self-reported mental health issues harmed the children or threatened their lives, safety, or health. Although there was no showing of past harm, Dr. Ferrara and Dr. Johnson opined that the children could be detrimentally impacted if returned to the parents. Because termination under section 39.806(1)(c) in this case would be based on prospective harm, we must determine if there is a substantial risk of significant harm to the children. See J.F. v. Dep’t of Children Families, 890 So.2d 434, 440 (Fla. 4th DCA 2004); L.B. v. Dep’t of Children Families, 835 So.2d 1189, 1194— 95 (Fla. 1st DCA 2002). In other words, we must decide whether DCF demonstrated a nexus or predictive relationship between the past domestic violence or the Mother’s mental health issues and future harm to the children. See L.D. v. Dep’t of Children Family Servs., 957 So.2d 1203, 1205-06 (Fla. 3d DCA 2007) (explaining that there must be a nexus between the parent’s past conduct and future harm to the child before the court can terminate the parent’s rights under section 39.806(l)(c) based on prospective harm); S.S. v. D.L., 944 So.2d 553, 559 (Fla. 4th DCA 2007) (“[Tjhere must be a further nexus between the past conduct and future behavior.”).

Here, the children were not adjudicated dependent based on the alleged domestic violence or on the Mother’s self-reported mental health issues. DCF conceded in its opening statement that the children were not present during the alleged incidents of domestic violence. Consequently, DCF did not establish that the alleged domestic violence harmed the children because the children were not present when the alleged domestic violence occurred and there was no evidence that they were otherwise aware of it. See J.C. v. Dep’t of Children Family Servs., 947 So.2d 1246, 1248-49 (Fla. 2d DCA 2007). Evidence that the Father committed domestic abuse on an adult, the Mother, outside the children’s presence, is not predictive of future harm to the children. See id. at 1250. Furthermore, the Father does not suffer from any physical or mental illness or condition that would inhibit his proper care of K.C. and G.C. in the future. Although the Mother admitted a history of mental health issues, Dr. Johnson did not testify that these issues would inhibit the Mother’s proper care of the children. Under these circumstances, we cannot conclude that continued interaction with the parents threatens the life, safety, or health of the children.

Second, DCF did not prove that any provision of services would be futile. Dr. Ferrara testified that the children could be reunified with the Father if he was provided in-home services. Dr. Johnson indicated that the Mother would likewise benefit from in-home services, but he gave conflicting testimony regarding any future psychiatric treatment. Although he indicated that the Mother’s mental health issues could be addressed through counseling and treatment, he also stated that the Mother was not receptive to treatment. Based on these experts’ assessments, we are not convinced that DCF proved by clear and convincing evidence that any potential threat presented by the alleged domestic violence or the Mother’s self-reported mental health issues cannot be remedied by the provision of services. Thus we agree with the circuit court’s decision not to terminate parental rights under section 39.806(1)(c).

IV. CONCLUSION

For the foregoing reasons, we reverse the final judgment that terminated the Father’s parental rights to K.C. and G.C. and the Mother’s parental rights to J.P.B., K.C., and G.C.

On remand, the circuit court should dispose of these cases as authorized by section 39.811(1) and Florida Rule of Juvenile Procedure 8.525(i). If the court finds grounds to re-adjudicate the children dependent under the more relaxed preponderance-of-the-evidence standard applicable in dependency hearings, see 39.507(1)(b), the court may continue the children’s placement in foster care under an amended case plan, see 39.6013(4), .811(1)(a).

Reversed and remanded for further proceedings.

SILBERMAN and KELLY, JJ., Concur.

      . DCF also requested termination of the Father's parental rights under subsections (b), (f), and (g). However, DCF orally struck those grounds from the petition during the termination hearing.


author: NORTHCUTT, Chief Judge.

text:
    STATE of Florida, Appellant, v. Darryl M. SMITH, Appellee.
    No. 2D07-5999.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   NORTHCUTT, Chief Judge.

The circuit court granted Darryl Smith’s motion to suppress in reliance on this court’s decision in Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007), approved, 998 So.2d 531 (Fla.2008). However, the Miranda warning given in this case materially differed from the warning at issue in Powell. Therefore, we reverse.

As explained by this court and the Florida Supreme Court in their respective Powell decisions, the Miranda warning given to Kevin Powell was constitutionally deficient because it did not convey his right to the presence of an attorney during questioning. Rather, Powell was told that he had the right to talk to a lawyer before answering questions. 998 So.2d at 541. This instruction was misleading because “[t]he ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.” Id. at 541. Although Powell was also told that he could use his rights during the interview, this portion of the warning “could not cure the deficiency because Powell was never unequivocally informed that he had the right to have an attorney present at all times during his custodial interrogation.” Id. at 541.

In this case, however, Smith was told: “You have the right to the presence of an attorney.” Nothing Smith was told suggested that his right to the presence of an attorney was limited to the period “before questioning.” Therefore, this case is distinguishable from Powell and more akin to Graham v. State, 974 So.2d 440 (Fla. 2d DCA 2007), review denied, 984 So.2d 1250 (Fla.2008), which distinguished Powell because the warning given to Wilson Graham advised “that Graham had the right to the presence of an attorney and did not include any timeframe limitation.” 974 So.2d at 440. In fact, the supreme court cited Graham and noted this distinction in Powell, 998 So.2d at 541. Accordingly, we reverse the order granting the motion to suppress.

Reversed and remanded.

SILBERMAN and LaROSE, JJ., Concur.


text:
    Randal J. LUEDTKE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4580.
    District Court of Appeal of Florida, Second District.
    March 4, 2009.

      Jo Ann Barone, West Palm Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Hwan-Yul Lee, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Randal J. Luedtke appeals his judgment and sentence, challenging the court’s denial of his presentence motion to withdraw plea. We agree with Mr. Luedtke that his trial counsel’s incorrect advice regarding possible civil commitment consequences under the Jimmy Ryce Act constituted good cause sufficient to permit Mr. Luedtke to withdraw his guilty plea prior to sentencing. We accordingly reverse and remand for further proceedings.

In February 2006, the State filed an amended information charging Mr. Luedtke with one count of sexual battery under section 794.011(5), Florida Statutes (2004). Mr. Luedtke entered a negotiated plea of no contest to the charge. The plea agreement called for a downward departure sentence of six years’ imprisonment, which was scheduled to be imposed at a sentencing hearing approximately one month after the plea hearing.

During the plea colloquy, the court, in accordance with Florida Rule of Criminal Procedure 3.172(c)(9), asked Mr. Luedtke whether he understood that the Jimmy Ryce Act provides for evaluation and involuntary civil commitment of a person who has been convicted of a sexually motivated offense and who is found to be likely to commit a sexually motivated offense in the future. After the court’s explanation, Mr. Luedtke provided no response. Mr. Luedtke’s attorney then took a moment, off the record, apparently to clarify the matter with Mr. Luedtke. Mr. Luedtke then responded “[cjlear,” and he confirmed to the court that he and his attorney had discussed the implications of the Jimmy Ryce Act. The court then accepted Mr. Luedtke’s plea and granted Mr. Luedtke’s request to defer sentencing to a later date.

Before sentencing, Mr. Luedtke obtained new counsel and moved to withdraw his plea under Florida Rule of Criminal Procedure 3.170(f). He claimed that his prior attorney had misadvised him about the consequences of the Jimmy Ryce Act. During an evidentiary hearing on the motion, Mr. Luedtke’s prior attorney testified that he had advised Mr. Luedtke that the Jimmy Ryce Act probably would not apply to him. Mr. Luedtke also testified and recalled that his attorney told him not to worry about the Jimmy Ryce Act because he did not have any prior convictions. The trial court denied Mr. Luedtke’s motion, reasoning that counsel’s advice was reasonable and that if Mr. Luedtke were placed in Jimmy Ryce proceedings after completing his sentence, he could move to withdraw his plea at that time.

Under rule 3.170(f), the trial court may, in its discretion, and shall, on good cause, at any time before sentencing, permit a plea of guilty or no contest to be withdrawn. Where less than good cause is shown, the trial court’s ruling will not be reversed absent an abuse of discretion. Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003). If, however, there is a showing of good cause, the defendant shall be allowed to withdraw his plea as a matter of right. See id.; see also Wright v. State, 961 So.2d 1036, 1040 (Fla. 4th DCA 2007) (“[W]hen good cause is established, the rule entitles the defendant to withdraw the plea.”).

Good cause to withdraw a plea has been found to exist “when the plea is ‘infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.’ ” Johnson v. State, 947 So.2d 1208, 1210 (Fla. 5th DCA 2007) (quoting Onnestad v. State, 404 So.2d 403, 405 (Fla. 5th DCA 1981)). Civil commitment of persons found to be sexual predators under the Jimmy Ryce Act is considered a collateral consequence of a plea to a qualifying offense. Watrous v. State, 793 So.2d 6, 10 (Fla. 2d DCA 2001). It is well settled that affirmative misadvice regarding collateral consequences of a plea forms a basis for allowing a defendant to withdraw the plea. Id. at 11.

Section 394.912(9)(d), Florida Statutes (2004), of the Jimmy Ryce Act defines “sexually violent offense” as including a “[s]exual battery in violation of s. 794.011.” Under the Act, a person is subject to civil commitment proceedings if he or she has been convicted of a sexually violent offense and is sentenced to total confinement after the effective date of the Act, January 1, 1999. § 394.925.

Thus, based on the applicable law, Mr. Luedtke’s no contest plea to the offense of sexual battery in 2006 and his resulting sentence of confinement rendered him subject to the provisions of the Jimmy Ryce Act. This is not a matter of probability, but a legal certainty. Moreover, without elaborating on the facts, this case does not involve a minor or technical violation of the statute where an attorney could advise his or her client that the State “probably” would opt not to bring such proceedings against him after he completed his six-year term of imprisonment. The quick advice given to Mr. Luedtke at the plea hearing was misadvice. See Colombo v. State, 972 So.2d 1101, 1102 (Fla. 1st DCA 2008) (holding defendant’s claim of affirmative misadvice regarding consequences under the Jimmy Ryce Act established facially sufficient claim of ineffective assistance of counsel).

Moreover, the trial court erred in assuming that Mr. Luedtke could wait until he had nearly completed his term of imprisonment to bring a postconviction motion to withdraw his plea. Mr. Luedtke was not required to wait until civil commitment proceedings were brought against him to seek relief. Indeed, the normal period in which Mr. Luedtke could file a timely rule 3.850 motion would expire long before he completed his six-year prison sentence. See Fla. R.Crim. P. 3.850(b).

Counsel’s affirmative misadvice regarding the applicability of the Jimmy Ryce Act provided good cause to support Mr. Luedtke’s motion to withdraw his plea. We therefore conclude that the trial court erred in denying Mr. Luedtke’s motion to withdraw plea, and we reverse and remand for further proceedings.

Reversed and remanded.

CASANUEVA and LaROSE, JJ., Concur.

      . See §§ 394.910-.931, Fla. Stat. (2004).


author: PER CURIAM.

text:
    William C. KATKER, III, Appellant, v. Anthony FARERI, Fareri Financial Group, Inc., and Fareri Financial Services Inc., Appellees.
    No. 4D07-2989.
    District Court of Appeal of Florida, Fourth District.
    March 4, 2009.
    Rehearing Denied May 7, 2009.

      Bonnie S. Satterfield of Bonnie S. Sat-terfield, P.A., Coral Springs, for appellant.
    Anthony Fareri, Boca Raton, pro se; Michael L. Feinstein and Valorie S. Chavin of Michael L. Feinstein, P.A., Fort Laud-erdale, (Withdrawn counsel is no longer retained for appellees).
   PER CURIAM.

The final judgment is amended to specify that the award of $8,443 is for breach of the employment contract and not quantum meruit and, as amended, is hereby affirmed.

GROSS, C.J., FARMER, J., and MAASS, ELIZABETH T., Associate Judge, concur.


text:
    Kenneth James KENDRICK, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D08-1296.
    District Court of Appeal of Florida, First District.
    March 5, 2009.
    Kenneth James Kendrick, for Petitioner.
    Bill McCollum, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of certiorari, Kenneth James Kendrick seeks review of an order of the circuit court which treated his habeas corpus petition as a mandamus petition and denied it on its merits. We have jurisdiction in accordance with Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). For the reasons set forth below, we grant the petition in part and deny it in part.

Kendrick and another inmate were involved in an altercation. Kendrick received a disciplinary sanction for fighting and shortly thereafter the institutional classification team recommended that he be placed on close management I status. After a hearing, the team so ordered and the state classification officer approved the action. After unsuccessfully exhausting his administrative remedies, Kendrick sought relief by filing a habeas corpus petition in the Circuit Court for Leon County. That court entered an order which determined that mandamus, not ha-beas corpus, was the proper remedy. A filing fee was therefore assessed and a lien imposed on Kendrick’s trust account pursuant to section 57.085(5), Florida Statutes, when it was made to appear that Kendrick was indigent. Kendrick’s motions challenging these decisions were denied and the case proceeded to a determination on the merits. The court found that Kendrick had failed to show entitlement to relief with regard to his placement in close management and the petition was denied.

This Court has consistently held that an inmate who seeks release from close management back into the general prison population is entitled to proceed through a petition for writ of habeas corpus. See Ashley v. Moore, 732 So.2d 498 (Fla. 1st DCA 1999); Norris v. Dep’t of Corrections, 721 So.2d 1235 (Fla. 1st DCA 1998); Taylor v. Perrin, 654 So.2d 1019 (Fla. 1st DCA 1995); Guess v. Barton, 599 So.2d 770 (Fla. 1st DCA 1992); Roy v. Dugger, 592 So.2d 1235 (Fla. 1st DCA 1992); Thompson v. Dugger, 509 So.2d 391 (Fla. 1st DCA 1987); see also Holland v. State, 791 So.2d 1256 (Fla. 5th DCA 2001). No filing fee may be assessed in a true habeas corpus proceeding. See Art. I, § 13, Fla. Const.; Bocharski v. Circuit Court of Second Judicial Circuit, 552 So.2d 946 (Fla. 1st DCA 1989). The circuit court departed from the essential requirements of law by converting the habe-as corpus petition to mandamus. It should have determined whether it was the proper court to consider the petition for writ of habeas corpus under Murray v. Regier, 872 So.2d 217 (Fla.2002) and thereafter proceeded to resolve the case on its merits or transfer it. We therefore grant the petition in part and direct that all orders of the circuit court placing a lien on Kendrick’s trust account to recover fees for the circuit court proceeding or for this review proceeding be vacated and any funds taken from his trust account pursuant to a lien issued in this case be refunded to him. We otherwise deny the certio-rari petition, finding no basis to overturn the Department’s placement of Kendrick in close management.

Petition GRANTED in part and DENIED in part.

VAN NORTWICK, PADOVANO, and CLARK, JJ., concur.


text:
    James WHITFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0716.
    District Court of Appeal of Florida, First District.
    March 6, 2009.
    Rehearing Denied April 20, 2009.

      James Whitfield, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., WOLF and BROWNING, JJ., Concur.


author: GERSTEN, C.J.

text:
    J.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1259.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.
    Carlos J. Martinez, Public Defender, and Colleen Brady Ward and Harvey Se-pler, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., SHEPHERD, J., and SCHWARTZ, Senior Judge.
   GERSTEN, C.J.

J.B., a juvenile, appeals his adjudication of delinquency for petit theft. We reverse.

J.B. was at a public library doing homework when a Miami-Dade police officer, working off-duty library security, approached him. The officer recognized J.B. because she had previously issued him a trespass warning. The officer proceeded to arrest him. As the officer placed handcuffs on J.B.’s left wrist, J.B. ran away. The police later found J.B., still with the handcuffs on, and arrested him.

The State charged J.B. with: (1) battery on a police officer, (2) resisting arrest with violence, (3) trespassing on property after warning, and (4) petit theft of the handcuffs. At the adjudicatory hearing, the charge of battery on a police officer was reduced to misdemeanor battery, and the resisting arrest with violence and trespassing on property after warning charges were dismissed. After the hearing, the trial court found J.B. not guilty on misdemeanor battery, but guilty on petit theft of the handcuffs. J.B. appealed.

A person commits theft if he or she knowingly obtains or uses another person’s property with the intent to temporarily or permanently: (a) deprive the other person of the right to use the property or benefit from the property or (b) appropriate the property for his or her own use. See § 812.014(1)(a)-(b), Fla. Stat. (2007). Further, because petit theft is a specific intent crime, see C.G. v. State, 981 So.2d 1224, 1225 (Fla. 1st DCA 2008), the State is required to prove that J.B. intended to deprive the officer of her right to use the handcuffs or benefit from them, or that he intended to appropriate the handcuffs for his own use.

Here, the State presented evidence of J.B.’s intent to flee from the police officer. However, the State did not present any evidence that J.B. intended to steal the handcuffs or deprive the police officer of her property. Instead, J.B.’s act of taking the handcuffs was incidental to his flight from an officer’s unlawful arrest. Actually, we are sure that J.B. would have gladly relinquished any dominion, control, or possessory rights to the handcuffs if he only had the key to release them.

Because the evidence was not sufficient to support the adjudication of delinquency, we reverse with instructions to dismiss the petit theft charge.

Reversed.


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Jesse SOLOMAN, Appellee.
    No. 2D08-1250.
    District Court of Appeal of Florida, Second District.
    March 11, 2009.
    Rehearing Denied April 30, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals an order granting Jesse Soloman’s motion to suppress statements Soloman gave to police. The trial court suppressed the statements after finding that Soloman was not given adequate Miranda warnings; specifically, the trial court found that Soloman was not informed that he had the right to the presence of an attorney during questioning. Although we agree that the Miranda warnings given to Soloman were inadequate based on State v. Powell, 998 So.2d 581 (Fla.2008), the record indicates that the trial court never addressed whether Soloman was in custody when he made the statements. We therefore reverse the order of suppression and remand for further proceedings.

The Miranda warnings given to Soloman were identical to the warnings at issue in Powell. In Powell, 998 So.2d at 542, the Florida Supreme Court held that the warnings did not clearly inform Powell of his right to the presence of counsel during the custodial interrogation and that “to advise a suspect that he has the right ‘to talk to a lawyer before answering any of our questions’ constitutes a narrower and less functional warning than that required by Miranda.” Therefore, based on Powell, the Miranda warnings given to Soloman did not adequately inform him of his right to the presence of counsel during custodial interrogation.

However, even if the Miranda warnings were insufficient, Solomaris statements to detectives are admissible if Soloman was not subject to custodial interrogation when he made the statements. “The Supreme Court defined ‘custodial interrogation’ as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Meredith v. State, 964 So.2d 247, 250 (Fla. 4th DCA 2007) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “A person is in custody if a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.” Ramirez v. State, 739 So.2d 568, 573 (Fla.1999); see also California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Kee v. State, 504 So.2d 1365 (Fla. 1st DCA 1987).

This issue involves mixed questions of fact and law and should be first addressed by the trial court. State v. Deferance, 807 So.2d 806, 808 (Fla. 4th DCA 2002); see Wright v. State, 766 So.2d 467 (Fla. 1st DCA 2000) (where trial court failed to address whether appellant withdrew his consent to search, the case was reversed and remanded for trial court to conduct new hearing on the issue); Simpson v. State, 562 So.2d 742 (Fla. 1st DCA 1990) (concluding that, where it was uncertain from the record what trial court intended in its ruling on voluntary nature of appellant’s confession, the case had to be reversed and remanded for either a written order stating its conclusion or a new hearing on appellant’s motion).

Accordingly, we reverse the suppression order and remand for further proceedings in which the trial court must determine whether Soloman was subject to custodial interrogation when he made the statements at issue.

Reversed and remanded with instructions.

ALTENBERND and KELLY, JJ., Concur.

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