author: LaROSE, Judge. ALTENBERND, Judge,

text:
    Eric J. DRAWDY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3347.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2012.

      James Marion Moorman, Public Defender, and Stephen M. Grogoza, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Eric Drawdy appeals his convictions and sentences for sexual battery of a child and for lewd or lascivious molestation. See §§ 794.011(l)(h), (8)(b); 800.04(5)(a), Fla. Stat. (2006). Double jeopardy bars conviction for both offenses committed in a single criminal episode. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Accordingly, the law compels us to reverse in part.

The following statutory provisions apply:

§ 794.011 Sexual battery.—
(l)(h) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object
(8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:
(b) Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (l)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
§ 800.04(5) Lewd or lascivious molestation.—
(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

Relevant Background

Mr. Drawdy raped his young teenage stepdaughter. While doing so, he touched her breasts. A jury convicted Mr. Drawdy of sexual battery. The jury also convicted him of lewd or lascivious molestation for touching the breasts. The trial court sentenced him to thirty years in prison for the sexual battery, followed by five years of probation for the molestation. Mr. Draw-dy argues that his convictions violate double jeopardy and constitute fundamental error. See Avila v. State, 86 So.3d 511, 513 n. 2 (Fla. 2d DCA 2012) (“[A] violation of double jeopardy constitutes fundamental error that may be raised for the first time on appeal.” (citing Gisi v. State, 848 So.2d 1278, 1281 (Fla. 2d DCA 2003); Johnson v. State, 747 So.2d 1027, 1028 (Fla. 2d DCA 1999))).

The Fifth Amendment to the United States Constitution and article I, section 9, of the Florida Constitution “prohibit[] subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense.” Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009). The double jeopardy guarantee restrains courts and prosecutors. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The legislature remains free to define crimes and fix punishments; “but once the legislature has acted courts may not impose more than one punishment for the same offense....” Id. at 165, 97 S.Ct. 2221. Of course, double jeopardy does not prohibit multiple punishments for different offenses arising from the same criminal episode “as long as the Legislature intends to authorize separate punishments.” Valdes, 3 So.3d at 1069. “[T]he role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments arising from a single criminal act.” Hayes v. State, 803 So.2d 695, 699 (Fla. 2001) (quoting Brown, 432 U.S. at 165, 97 S.Ct. 2221); Claps v. State, 971 So.2d 131, 133 (Fla. 2d DCA 2007).

Double jeopardy poses no concern where separate convictions arise from separate criminal episodes. See Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010) (“Multiple punishments and convictions may rest on offenses occurring within differing criminal episodes.”). Typically, criminal acts occur in separate criminal episodes where there are multiple victims, multiple locations, a temporal break between acts, or where the perpetrator forms a new criminal intent between acts. Hayes, 803 So.2d at 700-01 (citing Hearn v. State, 55 So.2d 559, 560-61 (Fla.1951)); Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (citing Staley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002)). Here, we have a single victim, a single location, and no temporal break between the sexual battery and the lewd or lascivious molestation. Recall that the acts occurred simultaneously. Under these circumstances, we face a single criminal episode.

Blockburger Different Elements Test

Where multiple convictions arise from a single episode, a court must determine whether the offenses constitute single or distinct acts. Blockburger aids in that determination. “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180. “[T]he Florida sexual battery statutes are particularly susceptible to the distinct acts exception because the statutes ‘may be violated in multiple, alternative ways....”’ Partch, 43 So.3d at 761 (quoting Saavedra v. State, 576 So.2d 953, 956-57 (Fla. 1st DCA 1991)).

Multiple Sexual Penetration or Union Crimes

Separate convictions for more than one type of sexual battery described in section 794.011 in a single episode do not violate double jeopardy; each battery is of a separate character and type that requires a different element of proof. Saavedra, 576 So.2d at 957 (“Sexual battery of a separate character and type requiring different elements of proof warrant multiple punishments.”); accord Schwenn v. State, 898 So.2d 1130, 1132 (Fla. 4th DCA 2005). See, e.g., Duke v. State, 444 So.2d 492, 493-94 (Fla. 2d DCA), ajfd, 456 So.2d 893 (Fla.1984) (vaginal penetration followed by anal penetration a moment later); Grunzel v. State, 484 So.2d 97 (Fla. 1st DCA 1986) (cunnilingus followed by vaginal intercourse seconds later); Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980) (oral sex followed by rape). In each of these cases, the distinct acts were committed sequentially. See Schwenn, 898 So.2d at 1132 (distinguishing Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001), where, because defendant fondled victim’s breast and vagina at practically the same time, he did not have time to reflect and form new criminal intent).

Although appellate courts affirmed separate convictions for more than one type of sexual battery in a single episode, they did not do the same for section 800.04(4) lewd or lascivious batteries, despite the fact that the prohibited acts of oral, anal, or vaginal penetration or union were the same as those in the sexual battery statute. See, e.g., Capron v. State, 948 So.2d 954, 959 (Fla. 5th DCA 2007) (two lewd or lascivious acts of kissing victim’s vagina and touching genital area with penis in one episode not sufficiently discrete to deem separate offenses). To this point, the evolving judicial interpretation of sections 794.011 and 800.04 precluded conviction for both sexual battery and lewd or lascivious molestation in the same episode. State v. Meshell, 2 So.3d 132, 133 (Fla.2009), changed the landscape, extending the exception for distinct acts of sexual battery to the different types of lewd or lascivious battery identified in section 800.04(4) because the elements were the same. Me-shell upheld dual convictions for lewd or lascivious battery — by penetration or union with the victim’s vagina and by penetration or union with the victim’s mouth in the same episode — “[bjecause the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1....” Id. at 136; see also, e.g., Schuster v. State, 17 So.3d 304 (Fla. 4th DCA 2009) (upholding four convictions for serial, distinct lewd and lascivious batteries in same episode); State v. Gonzalez, 24 So.3d 595 (Fla. 5th DCA 2009) (approving dual convictions for lewd and lascivious battery in single episode). Meshell, of course, involved section 800.04(4), and its holding did not extend to section 800.04(5), the statute under which the State charged Mr. Drawdy. See Me-shell, 2 So.3d at 134 (specifically limiting its double jeopardy review to section 800.04(4)); Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009) (observing that Me-shell limited its holding to section 800.04(4)).

Sexual Penetration or Union Crimes with Lewd or Lascivious Molestation

Historically, sexual battery subsumed acts of lewd or lascivious molestation in the same episode. We have held that double jeopardy precluded convictions for both. See Johnson v. State, 913 So.2d 1291 (Fla. 2d DCA 2005) (sexual battery and lewd or lascivious molestation in one criminal episode are one offense of sexual battery). Similarly, we have held that double jeopardy precluded conviction for a lewd or lascivious molestation in the same episode as a lewd or lascivious battery. See, e.g., Johnson, 913 So.2d at 1291-92 (double jeopardy prohibited convictions for both sexual battery and lewd and lascivious molestation during same episode); Gisi v. State, 909 So.2d 531 (Fla. 2d DCA 2005) (convictions for lewd and lascivious acts in same episodes as sexual intercourse with a child violated double jeopardy). Some courts reasoned that the defendant could not form a new criminal intent for acts involving simultaneous offenses. See, e.g., Leyva v. State, 925 So.2d 393 (Fla. 4th DCA 2006) (holding attempted sexual battery and lewd and lascivious conduct of touching hand and leg in same episode were one offense because there was not time to form new intent); Mijarez v. State, 889 So.2d 827, 828 (Fla. 4th DCA 2004) (reversing convictions for two counts of lewd or lascivious molestation in same episode as lewd or lascivious battery where it could not be said that defendant paused, reflected, and formed new criminal intent each time he fondled victim during sexual encounter). But see Darville v. State, 995 So.2d 1025,1027 (Fla. 4th DCA 2008) (“We have no difficulty in ascertaining that the lewd and lascivious molestation offense contains an element not found in the sexual battery conviction, and vice versa.” (citing Binns v. State, 979 So.2d 439, 442 (Fla. 4th DCA 2008) (“Based upon a Blockbur-ger analysis, the crimes of lewd and lascivious acts and sexual battery each contain an element that the other does not;” therefore dual conviction would not violate double jeopardy))).

In Beahr v. State, 992 So.2d 844, 845 (Fla. 1st DCA 2008), the jury convicted the defendant of sexual battery by placing his penis in the victim’s mouth and for lewd or lascivious molestation by touching the child’s genitals in the same criminal episode. The First District conducted a double jeopardy analysis, beginning by examining whether the statutes showed a “ ‘clear statement of legislative intent’ to have the crimes punished separately in all cases.” Id. at 845 (quoting State v. Paul, 934 So.2d 1167, 1171 (Fla.2006), receded from on other grounds in Valdes, 3 So.3d at 1077). It found “no clear statement of legislative intent to punish sexual battery and lewd or lascivious molestation separately, nor any basis for believing Appellant had the opportunity to form a new criminal intent between the commission of the crimes....” Id. The next step was to apply the Blockburger test to determine “whether each crime contains an element that the other does not, by reference to the statutory definitions only.” Beahr, 992 So.2d at 846 (citing Paul, 934 So.2d at 1173). The Beahr court examined the applicable elements of sexual battery and lewd and lascivious molestation, which read as follows:

§ 794.011 Sexual battery.—
(l)(h) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object
§ 800.04(5) Lewd or lascivious molestation.—
(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks; or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

Applying the Blockburger test, the Beahr court determined that sexual battery included an element not included in lewd or lascivious molestation — penetration or union — but the converse was not true; rather, “the elements of lewd or lascivious molestation [were] subsumed by the elements of the more serious crime of sexual battery.” Beahr, 992 So.2d at 847. The court continued, “sexual battery cannot occur without a touching of one of the body parts listed in section 800.04(5). Because sexual battery requires such touching, one cannot commit sexual battery without simultaneously committing the crime described in section 800.04(5).” Id. at 847 (citing Capron, 948 So.2d at 960 (recognizing that committing “any kind of battery” requires “a touching”)). The court concluded that sexual battery and lewd or lascivious molestation were the same offense for double jeopardy purposes. Id.

Later, however, the First District concluded that Meshell had “superseded [its] decision in Beahr that double jeopardy principles preclude[d] convictions for sexual battery and lewd or lascivious molestation which occurred in a single criminal episode.” Roberts v. State, 39 So.3d 372, 374 (Fla. 1st DCA 2010). The court stated;

Considering the supreme court’s conclusion in Meshell that double jeopardy principles do not necessarily preclude multiple convictions for the same sexual offense committed by different actions during the same criminal episode, it necessarily follows that double jeopardy principles would not necessarily preclude convictions for two different sexual offenses committed by different actions during the same criminal episode.

Id. The First District expanded MeshelVs holding beyond section 800.04(4) lewd or lascivious battery. In doing so, it stretched the holding to cover multiple acts involving penetration or union in the same episode to combinations of penetration or union, and of touching without penetration or union in the same episode. Roberts, 39 So.3d at 374. In Roberts, the jury convicted the defendant of two sexual batteries, one oral and one vaginal, each in a separate episode. Id. at 373. It also convicted him of two counts of lewd or lascivious molestation, one by touching the victim’s genitals with his hand in one sexual battery episode, the other by touching the victim’s breasts and/or buttocks with his hands and/or mouth during the other sexual battery episode. Id. at 373. Apparently, there was no temporal break between the sexual battery and the molestation in either episode. Id.

The First District upheld all four convictions, reasoning that, like the distinct acts of penetration or union in Meshell, the sexual battery and the lewd or lascivious molestation in each episode were “of a separate character and type requiring different elements of proof.” Roberts, 39 So.3d at 374. Reading MeshelVs holding to be that double jeopardy no longer prohibited convictions for alternative types of lewd or lascivious battery because it already allowed multiple convictions for the same alternative types of sexual battery, the First District concluded that the legislature also intended to separately punish lewd or lascivious molestation and sexual battery in the same episode because their elements were different.

The Fifth District reached a similar conclusion, holding that the differences in character and type of crime between attempted sexual battery — by union of the defendant’s penis with the victim’s vagina — and lewd or lascivious molestation— by touching her genitals or clothing covering them-in the same episode led to the conclusion that dual convictions did not violate double jeopardy. See Murphy v. State, 49 So.3d 295, 298 (Fla. 5th DCA 2010), rev. granted, 79 So.3d 745 (Fla.2012) (table decision) (citing Meshell, 2 So.3d at 135). The Fifth District interpreted legislative intent to separately punish two crimes arising from a single act even more broadly in Roughton v. State, holding that double jeopardy did not preclude dual convictions for sexual battery and lewd or lascivious molestation for the defendant’s single act of placing his mouth on the victim’s penis. 92 So.3d 284, 285-87 (Fla. 5th DCA 2012) (certifying direct conflict with Robinson v. State, 919 So.2d 623 (Fla. 2d DCA 2006); Johnson v. State, 913 So.2d 1291 (Fla. 2d DCA 2005); Berlin v. State, 72 So.3d 284 (Fla. 1st DCA 2011); and Smith v. State, 41 So.3d 1041 (Fla. 1st DCA 2010)).

We disagree with Roberts, Murphy, and Roughton. We agree, instead, with the First District’s reasoning in Beahr that, while sexual battery includes an element not included in lewd or lascivious molestation, the converse is not true. Beahr, 992 So.2d at 847. Here, Mr. Drawdy committed sexual battery by rape. See § 794.011(l)(h). The lewd or lascivious molestation he simultaneously committed was “intentionally touching] in a lewd or lascivious manner the breasts.... ” See § 800.04(5). The statute does not specify that the touching must be done with hands. And our record does not disclose the manner of the touching. Vaginal penetration without touching the victim’s breasts or buttocks with some part of the perpetrator’s body would be acrobatic. See Beahr, 992 So.2d at 847 (“sexual battery cannot occur without a touching of one of the body parts listed in section 800.04(5)”). Therefore, we conclude that under Block-burger analysis, double jeopardy prohibits convictions for both sexual battery and lewd or lascivious molestation as separate offenses. We are confident that if the legislature intended to punish sexual battery and simultaneous lewd and lascivious touching separately, it will amend the statutes accordingly. See Aldacosta v. State, 41 So.3d 1096, 1097 (Fla. 2d DCA 2010).

Conclusion

We reverse and remand for the trial court to vacate Mr. Drawdy’s conviction for lewd or lascivious molestation. As a practical matter, today’s decision is not likely to afford Mr. Drawdy much practical relief because his sentence for lewd or lascivious molestation is only five years’ probation following his thirty-year sentence for sexual battery.

We certify conflict with the First District’s decision in Roberts and the Fifth District’s decisions in Murphy and Rough-ton. Mr. Drawdy raised four other issues on appeal. We affirm on those issues without further discussion.

Reversed in part, affirmed in part, and remanded.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in the court’s opinion. I write to suggest that the legislature should consider enacting a statute that would reduce the need for the judiciary to perform a constitutional double jeopardy analysis in so many cases involving sexual misconduct.

Acrobatics aside, sexual misconduct has proven to be a topic that eludes satisfactory constitutional double jeopardy analysis in Florida. Inappropriate sexual activity is simply too varied and nuanced to allow the legislature to create a core offense and a simple structure of greater and lesser offenses. Sometimes this complexity has worked to the undeserved benefit of the defendant. See, e.g., Gould v. State, 577 So.2d 1302 (Fla.1991), receded from on other grounds, I.T. v. State, 694 So.2d 720, 724 (Fla.1997) (holding that the next lesser offense when sexual battery of a physically helpless victim is not established is misdemeanor battery). Other times, as described in Judge LaRose’s excellent opinion for the court, prosecutors have dissected a criminal episode of sexual misconduct into an unjustified collection of parts, charging each part as a serious felony.

Although a precise structure of greater and lesser offenses has eluded us, both the common law and the more recent legislative criminal codes have clearly viewed lewd and lascivious conduct as a crime that can be distinguished from sexual battery and one that is less serious than sexual battery. In earlier versions of chapter 800, for example, lewd and lascivious assault was an act committed “without committing the crime of sexual battery.” See § 800.04, Fla. Stat. (1991).

As the cases cited by the court’s opinion demonstrate, a standard Blockburger analysis is often an unsatisfactory method to resolve double jeopardy issues in cases of sexual misconduct because our sense of the separateness of these crimes or, alternatively, our sense that two or more offenses are inextricably intertwined conduct is not adequately explained by a difference in the English language description of the elements of these offenses. Indeed, even providing a definition of “single criminal episode” has been extremely difficult in these cases. The courts have repeatedly struggled with the limitations created by double jeopardy — as a constitutional question — because we do not have a statute that would allow the matter to be more simply resolved as a statutory question.

The legislature has previously created statutes that help the courts avoid the necessity of engaging in a constitutional analysis under similar circumstances. Section 794.005 was enacted in 1992 in an effort to provide at least limited guidance for double jeopardy issues. Ch. 92-135, § 2, at 1089, Laws of Fla. Concerning the crime of theft, we have long had a statutory provision limiting the courts’ power to impose more than one conviction for the combination of the offenses of theft and dealing in stolen property. See § 812.025, Fla. Stat. (2010). This statute has allowed the courts to avoid most of the difficult constitutional double jeopardy issues that arise between these two interrelated crimes.

For purposes of discussion, I believe the case law on double jeopardy in cases of sexual misconduct could be simplified if chapter 800 contained a statute along the lines of the following:

800.01 Multiple Judgments and Sentences under chapter 794 and chapter 800.—
(1) Notwithstanding any other provision of the law, a single indictment or information may, under proper circumstances, charge multiple offenses under the provisions of chapter 794 and chapter 800. When the State presents sufficient evidence, a jury may be instructed and return a verdict on each charged offense. The court shall not enter a judgment or sentence for any offense when prohibited by double jeopardy.
(2) When two or more offenses are committed within the context of a single sexual encounter and the acts that constitute those offenses can reasonably be regarded as closely related or continuous parts of the single sexual encounter, at the sentencing hearing a trial court may exercise its discretion to enter judgments and sentences on fewer than all such offenses, provided that the court shall enter judgment and sentence on the offense that results in the longest sentence.

A statute of this sort would allow trial judges to avoid difficult constitutional issues and eliminate issues requiring appeal. Given that the longest sentence in the typical case creating these issues is often life without possibility of parole, and rarely less than thirty years’ incarceration, the statute would not cause defendants to receive short sentences. I am inclined to believe that the trial judge could exercise this discretion at the end of the case without being required to submit the issue of a “close relationship” for determination by the jury during the trial.

      .Before the legislature amended section 800.04 effective in October 1999, see ch. 99-201, § 6, at 1187-89, Laws of Fla., it read as follows:
      800.04. Lewd, lascivious, or indecent assault or act upon or in presence of child.— A person who:
      (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;

      without committing the crime of sexual battery, commits a felony of the second degree. ...
      § 800.04, Fla. Stat. (1997).

      .This principle is also reflected in section 775.021(4)(b), Florida Statutes (2006), which lists exceptions to the legislative intent to convict and sentence for each criminal offense committed in one criminal episode:
      1. Offenses which require identical elements of proof.
      2. Offenses which are degrees of the same offense as provided by statute.
      3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

      . The apparent trend has not reached far enough to deem different variations of section 800.04(5) lewd or lascivious molestation to be separate offenses for double jeopardy purposes. See, e.g., Brown, 25 So.3d 78 (Fla. 2d DCA 2009) (holding victim’s hand touching penis and defendant’s mouth touching vagina in one episode were one offense); Morman v. State, 811 So.2d 714, 717 (Fla. 2d DCA 2002) (holding double jeopardy principles permitted only one lewd or lascivious act conviction per episode for virtually simultaneous touching of girl’s breasts and buttocks in first episode and her breasts and vagina in second episode); J.M. v. State, 4 So.3d 703 (Fla. 5th DCA 2009) (holding two acts of lewd or lascivious conduct in one episode were one offense). But see Comas v. State, 45 So.3d 49, 50-51 (Fla. 1st DCA 2010), review denied, 59 So.3d 107 (Fla. Mar. 18, 2011) (table decision) (citing Meshell and Roberts, holding double jeopardy does not preclude conviction of lewd or lascivious molestation and lewd or lascivious conduct (§ 800.004(6)(a)(l), intentional lewd or lascivious touching) in a single episode); compare with Bishop v. State, 46 So.3d 75 (Fla. 5th DCA 2010) (holding double jeopardy precludes conviction for both lewd or lascivious molestation by manually touching victim’s genital area and lewd or lascivious conduct by manually touching victim’s leg in same episode).


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Harris SCHWARTZBERG; Harris Schwartzberg Trust; Steven Schwartzberg Trust; Judith Schwartz-berg Trust; Schwartzberg Descendants Trust; Harris Schwartzberg 2003 Trust; Steven Schwartzberg 2003 Trust; Hs Midwest Trust # 1; Js Midwest Trust; Fam Midwest Trust; Judith Schwartzberg 2003 Trust; Harris Schwartzberg 2004 Gst Trust 1; Harris Schwartzberg 2004 Gst Trust 2; Judith Schwartzberg 2004 Gst Trust 1; Judith Schwartzberg 2004 Gst Trust 2; Schwartzberg Family 2004 Gst Trust; Schwartzberg 2004 Descendants Trust; Js National Trust; Hs National Trust # 1; Hs National Trust # 2; Fam National Trust; and Maxwell Stolzberg, Appellants, v. Kim K. KNOBLOCH, as Personal Representative of the Estate of William Knobloch, Deceased, Appellee.
    No. 2D11-2867.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2012.

      Daniel E. Dias and Dante M. Skourellos of Mancuso & Dias, P.A., Tampa, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   WALLACE, Judge.

Upon consideration of the “Motion for Rehearing, Motion for Rehearing- En Banc, and Motion for Certification” filed by Appellee on May 30, 2012,

IT IS ORDERED that the request for rehearing is granted. Accordingly, the opinion dated May 16, 2012, is withdrawn, and the attached opinion is substituted therefor.

The revised opinion — which does not affect the disposition of the case — reflects that the court considered and rejected the Appellee’s assertion of long-arm jurisdiction over the Appellants under section 48.193(2), Florida Statutes (2010), as well as section 48.193(l)(a).

The Appellee’s requests for rehearing en banc and for certification are denied. No further motions for rehearing will be entertained.

The Appellants, Harris Schwartzberg, Maxwell Stolzberg, and multiple trusts are among the defendants in nursing home litigation brought by the Appellee, Kim K. Knobloch, as the personal representative of the Estate of William Knobloch, deceased. The Appellants challenge the circuit court’s order denying their motions to dismiss for lack of personal jurisdiction. Because Ms. Knobloch failed to establish any basis for personal jurisdiction of the Appellants in Florida, we reverse the circuit court’s order.

I. INTRODUCTION

William J. Knobloch was a resident of a 185-bed skilled nursing facility known as “Palm Terrace of Lakeland,” from January 24, 2004, until his discharge on January 1, 2010. In June 2010, Mr. Knobloch filed an action against the operator of the nursing home and others for alleged deficiencies in his care during his residence at the home. Mr. Knobloch alleged claims for negligence, breach of fiduciary duty, and violations of section 415.1111, Florida Statutes (2009). Mr. Knobloch died on October 17, 2010. Ms. Knobloch was appointed as the personal representative of his estate, and she was substituted as the plaintiff in the pending litigation.

In March 2011, Ms. Knobloch filed a second amended complaint that named the Appellants as defendants along with numerous other entities and individuals. Two of the Appellants, Harris Schwartz-berg and Maxwell Stolzberg, are individuals who reside in the State of New York. The remaining Appellants are twenty trusts created and registered in the State of New York (the New York trusts). Mr. Schwartzberg, Mr. Stolzberg, and the New York trusts each filed a motion to dismiss the second amended complaint against them for lack of personal jurisdiction. The question we are called upon to decide is whether the Appellants — all of whom are nonresidents of Florida — had sufficient contacts with the subject of the litigation or the State of Florida to warrant Florida’s exercise of personal jurisdiction over them.

II. THE FACTS

During the period of Mr. Knobloch’s residence at Palm Terrace of Lakeland, a group of related companies known as “the Schwartzberg Companies” had an interest in that nursing home and in sixteen other facilities in Florida. The Schwartzberg Companies structured the ownership and operation of these facilities in a complex web of limited liability companies, corporations, and trusts. We offer the following explanation of the relationship between the various Appellants and Palm Terrace of Lakeland.

Each of the seventeen facilities was operated by a separate entity. SA-Lake-land, LLC, held the license for and operated the nursing home known as “Palm Terrace of Lakeland.” At the first tier of ownership, SA-Lakeland, LLC, had two parent companies. CHC-CLP Operator Holdings, LLC, owned a 99.5% interest in the subsidiary operating company; CHC-SPC Operator, Inc., owned the remaining .5% interest. Also at the first level, CHC-CLP Operator Holdings, LLC, owned 100% of CHC-SPC Operator, Inc.

At the second tier of ownership, SA-Master Operator Holdings, LLC, owned 99.5% of CHC-CLP Operator Holdings, LLC. Several of the New York trusts apparently owned the remaining .5%. Before a restructuring that occurred in August 2007, the ownership of CHC-CLP Operator Holdings, LLC, was divided equally among Mr. Schwartzberg and three of the New York trusts.

At the third tier, sixteen of the New York trusts owned SA-Master Operator Holdings, LLC. Thus all of the New York trusts apparently had an indirect interest in SA-Lakeland, LLC, the operator of the nursing home, either through their ownership interest in its grandparent company, SA-PG Master Operator Holdings, LLC, or through their ownership interest in one of the parent companies, CHC-CLP Operator Holdings, LLC.

A separate entity managed the nursing home. Cypress Health Care Management Region III, LLC, acted as the management company for Palm Terrace of Lake-land. Cypress Health Care Holdings, LLC, owned 95% of the management company. Four of the New York trusts — HS National Trust # 1, JS National Trust, HS National Trust #2, and Fam National Trust — had ownership interests in the management company and its parent. In addition to the management company, several other related entities furnished goods and services to the nursing home.

As previously noted, Mr. Schwartzberg owned a 25% interest in CHC-CLP Operator Holdings, LLC, the nursing home’s parent company, until August 2007, when a restructuring occurred. Based on our limited record, it is impossible to state exactly the involvement of Mr. Schwartzberg and Mr. Stolzberg in this complex web of companies. However, both Mr. Schwartzberg and Mr. Stolzberg admittedly owned, either directly or indirectly, interests in several of the entities involved. They certainly had an indirect ownership interest in SA-Lakeland, LLC, the operating company for the nursing home. In addition, they seem to have served as managers of some of the limited liability companies.

III. THE COMPLAINT AND THE AFFIDAVITS

In her second amended complaint, Ms. Knobloeh alleged that each of the Appellants had conducted and engaged in business activities within the State of Florida; engaged in substantial and not isolated activities within the State of Florida; and purposely [took advantage] of the privileges of the State of Florida, through ... ownership of, leasing of, operation of, management of, and/or consultation with nursing homes, including PALM TERRACE OF LAKE-LAND, within the State of Florida.

Based on such allegations, Ms. Knobloeh asserted that each of the Appellants was subject to the jurisdiction of the Florida courts in accordance with section 48.193(l)(a), (2), Florida Statutes (2010).

Section 48.193(l)(a) provides that any person, whether or not a citizen of Florida, is subject to the jurisdiction of this state’s courts for any action arising out of “[operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.” Thus jurisdiction may be asserted upon nonresident persons or entities in accordance with the statute where the cause of action arises from that person’s business activities in Florida, i.e., where “connexity” exists. See White v. Pepsico, Inc., 568 So.2d 886, 889 n. 4 (Fla.1990) (“ ‘Connexity’ is the term courts have adopted to mean a link between a cause of action and the activities of a defendant in the forum state.”).

If there is a basis for jurisdiction under section 48.193(1), the plaintiff must still establish that the nonresident defendant has sufficient minimum contacts with the State of Florida to satisfy due process of law. See Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The test is whether “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

Section 48.193(2) provides that “[a] defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” Section 48.193(2) “does not require connexity between a defendant’s activities and the cause of action.” Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 85 (Fla. 2d DCA 2003) (quoting Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999)). And, “if the defendant’s activities meet the requirements of this section, the due process requirement of minimum contacts is fulfilled.” Id.

In this case, Mr. Schwartzberg and Mr. Stolzberg are residents of the State of New York. Ms. Knobloch does not contend that any of the trustees of the New York trusts are residents of the State of Florida. In her second amended complaint, Ms. Knobloch alleged that each of the trusts “is a New York entity.” We interpret this allegation as an acknowledgment that the situs of the trusts is in New York. Cf. Lampe v. Hoyne, 652 So.2d 424, 426 (Fla. 2d DCA 1995) (holding that the plaintiff had not established a basis for jurisdiction in Florida over a nonresident trustee where it was not established that the situs of the trust was in Florida); Miller v. Braunstein, 549 So.2d 797, 797-98 (Fla. 5th DCA 1989) (same). Thus the Appellants have little, if any, connection with Florida other than their indirect interests in the nursing home’s operating company and the interest of some of the New York trusts in the management company. That said, the Appellants agree that Ms. Knob-loch pleaded a basis under section 48.193 for service of process on the Appellants in New York.

However, the Appellants contested the asserted basis for jurisdiction by supporting their motions to dismiss with affidavits asserting that they did not have the requisite contacts with Florida. “A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.” Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If the affidavits can be harmonized, the court can resolve the jurisdiction issue based upon the undisputed facts. Id. at 502-03. If not, “the trial court [must] hold a limited evidentia-ry hearing in order to determine the jurisdiction issue.” Id. at 503. The trial “court’s decision must resolve (1) whether there are sufficient jurisdictional facts to bring the action within the long-arm statute, and (2) whether the nonresident defendant has sufficient minimum contacts with Florida to satisfy due process requirements.” Greystone Tribeca Acquisition, L.L.C. v. Ronstrom, 863 So.2d 473, 475 (Fla. 2d DCA 2004)- (citing Venetian Salami, 554 So.2d 499 and Kin Yong Lung Indus. Co. v. Temple, 816 So.2d 663 (Fla. 2d DCA 2002)).

The Appellants’ affidavits state generally that they did not have any offices in Florida; did not employ anyone in Florida; and did not control, operate, manage, consult with, or supervise the activities of Palm Terrace of Lakeland. In response, Ms. Knobloch filed an opposing affidavit prepared by Victoria Fierro, a Certified Public Accountant. Ms. Fierro did not base her affidavit on any direct knowledge of Palm Terrace of Lakeland and the Appellants. Instead, she relied for her information on various public records, including the nursing home’s application for licen-sure, “controlling interest” affidavits, and cost reports.

In her affidavit, Ms. Fierro notes that in 2007 the Schwartzberg Companies sent a letter to the Agency for Health Care Administration (AHCA) stating, “[a]s you know, our companies operate 17 facilities in Florida under the ‘Palm Garden’ and ‘Palm Terrace’ trade names.” Attached to that letter are several pages containing diagrams of the companies’ labyrinthine organizational structure. Based on the letter and the diagrams, Ms. Fierro opined that the New York Trusts “are the upstream 5% or greater controlling interests for the nursing home group that includes Palm Terrace of Lakeland.”

Ms. Fierro also noted that Mr. Schwartzberg was listed in a “2008 Medicaid Cost Report for Palm Terrace of Lake-land as a 45% owner of SA-Lakeland, LLC,” the operating company for the nursing home, and as “a 25% owner of Cypress Administrative Services, LLC.” Ms. Fierro described Cypress Administrative Services, LLC, as “a related party providing services to the nursing home with allowable costs in excess of $8,468,686.” She attached a copy of the nursing home cost report to her affidavit.

In addition, Ms. Fierro attached a copy of a document filed with the Florida Secretary of State indicating that Mr. Schwartz-berg is a member-manager of Medstar Consulting, LLC, a Delaware limited liability company authorized to transact business in Florida. She also noted that Mr. Schwartzberg had signed a $15,780 check to AHCA for the lease bond for another facility. Furthermore, Ms. Fierro reported that Mr. Schwartzberg is listed on a controlling interest affidavit submitted to AHCA in 2007 as having a 5% or greater interest in SA-Lakeland, LLC, the nursing home’s operating company. Based on other available information, it appears that the information concerning Mr. Schwartz-berg’s interest in the operating company refers to indirect rather than direct ownership.

With regard to Mr. Stolzberg, Ms. Fier-ro noted that he was listed in the 2008 cost report for Palm Terrace of Lakeland as the sole member and manager of SA-Lakeland, LLC, the operating company. This information appears to conflict with other available information and Mr. Schwartzberg’s reported 45% interest in the operating company. Ms. Fierro did not address this apparent inconsistency, and we are unable to resolve it.

Finally, Ms. Fierro attached to her affidavit a newspaper article that discussed the trend toward increasing complexity in the ownership structure of nursing homes, including the use of multilayered, single-purpose entities such as the ones involved in this case. Ms. Fierro explained that because of Congressional hearings and reports by the Government Accounting Office, Congress amended the Social Security Act to require more transparency in the reporting requirements for nursing homes. She attached a copy of the revised Social Security Act, Section 1124 (42 U.S.C. § 1320-3). The Appellants moved to strike this part of the affidavit and these materials as hearsay, but the circuit court did not rule on their motion.

IV. THE CIRCUIT COURT’S RULING

At the hearing on the Appellants’ motions to dismiss, the parties did not offer any additional evidence and their presentations were limited to the arguments of counsel. The circuit court inquired of Appellants’ counsel whether the ownership of the seventeen Florida facilities had been structured to enable various nonresident individuals and entities to maintain operational and budgetary control over the facilities, to direct profits from the facilities upstream, but to avoid liability and financial responsibility for the consequences of their operations. The circuit court suggested that such circumstances might give rise to personal jurisdiction over the Appellants in Florida, and, ultimately, it denied the Appellants’ motions to dismiss. This appeal followed.

V. STANDARD OF REVIEW

This court’s standard of review on orders finding personal jurisdiction over a nonresident defendant is de novo. Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 83 (Fla. 2d DCA 2003). In addition, Florida’s long arm statute must be strictly construed. Id.

VI.DISCUSSION

After a thorough review of the record in this case, especially the affidavits filed by the parties, we reverse the circuit court’s ruling denying the Appellants’ motion to dismiss. However, we acknowledge that the experienced circuit judge displayed an astute grasp of current trends in the ownership structures of nursing homes and similar facilities. The era of the locally owned, “mom and pop” nursing facility is gone. Increasingly, private investment groups own large chains of nursing homes. Charles Duhigg, At Many Homes, More Profit and Less Nursing, N.Y. Times, Sept. 23, 2007, http://www.nytimes.com/ 2007/09/23/business/23nursing.html. With the end of the locally owned nursing home, it has become common for nursing facilities to have complex ownership and management structures such as the one in this case. See, e.g., Lefkovitz v. Wagner, 291 F.Supp.2d 764, 767 (N.D.Ill.2003) (describing an ownership and management structure involving a number of levels), ajfd, 395 F.3d 773 (7th Cir.2005); Salley v. Heartlandr-Charleston of Hanahan, SC, LLC, 2010 WL 5136211 (D.S.C.2010) (addressing the question of personal jurisdiction of a sixth-tier parent company to the facility where the plaintiffs’ decedent was a resident); House v. 22 Tex. Servs., Inc., 60 F.Supp.2d 602 (S.D.Tex.1999) (describing a complex ownership and management structure established by a group that owned forty-nine nursing homes and assisted living facilities in Texas). These complex structures arise because the owners of multiple nursing homes and similar facilities have adopted the use of the single purpose entity (SPE) to minimize the various risks of their businesses.

In an instructive and informative article, two health care lawyers suggest that owners of nursing homes and similar facilities consider the use of SPEs for their ownership and operations to minimize business risk. Joseph E. Casson & Julia McMillen, Protecting Nursing Home Companies: Limiting Liability Through Corporate Restructuring, 36 J. Health L. 577 (Fall 2003). The authors provide several examples of this strategy:

[AJcompany could decide to restructure down to the individual facility level by forming real property SPEs to own each piece of real estate that is used as a nursing home, and by forming a corresponding number of operating SPEs to lease and operate the nursing homes. Alternatively, a company could decide to subdivide its operations into subsidiaries that own and operate only a certain number of facilities each, based upon the level of risk the company is willing to accept. In addition, a company could elect to place all of its real estate in a real property SPE, but operate each facility through an operating SPE. In effect, any restructuring should be customized to the particularized needs of each company.

Id. at 579. According to the authors, the benefits of employing these strategies include containing exposure to risk to the facility involved, thereby avoiding the exposure of all of the facilities in the group to liability. Id. The risks to be minimized by these strategies include: (1) exclusion from the Medicare and Medicaid programs, (2) Medicare and Medicaid overpayment liability, (3) liability under the federal False Claims Act, and (4) liability for damages to residents in tort or under other theories. Id. at 580-85. Where these strategies are employed, the operating company may have minimal assets. If the operating company is effectively judgment-proof, an injured resident may find it difficult, if not impossible, to collect on a damages claim. See David Couch, Corporate Neglect in Nursing Homes, 44-SEP Trial 50, 53 (Sept. 2008); Yao O. Dinizulu & Jennifer Matta, The Multi-Level Nursing Home Corporate Structure: Transparency, Accountability and Common Sense, 15 No. 6 Andrews Health Care Fraud Litig. Rep. 3 (Dec. 10, 2009); Duhigg, At Many Homes; Mei Zhao & D. Rob Haley, Nursing Home Quality, Staffing, and Malpractice Paidr-Losses, 38 No. 1 J. Health Care Fin. (Aspen) 1, 7 (Fall 2011).

For plaintiffs in nursing home litigation, basic principles of personal jurisdiction limit their ability to obtain jurisdiction of nonresident, upstream owners of nursing homes and the nonresident officers and employees of such entities. “Ownership of a resident subsidiary corporation by an out-of-state parent corporation, without more, has been repeatedly deemed insufficient to meet the requirements of section 48.193.” Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1143 (Fla. 2d DCA 2006) (citing Greystone Tribeca, 863 So.2d at 476). The same rule applies to nonresident individual shareholders of corporations resident in Florida. See Seabra v. Int’l Specialty Imps., Inc., 869 So.2d 732, 734 (Fla. 4th DCA 2004); Suroor v. First Inv. Corp., 700 So.2d 139, 141-42 (Fla. 5th DCA 1997); cf. Kitroser v. Hurt, 85 So.3d 1084, 1090 (Fla.2012) (“Where an individual, nonresident defendant commits negligent acts in Florida, whether on behalf of a corporate employer or not, the corporate shield doctrine does not operate as a bar to personal jurisdiction in Florida over the individual defendant”). Moreover, in accordance with the corporate shield doctrine, “acts of [a] corporate employee performed in [his] corporate capacity do not form the basis for jurisdiction over [the] corporate employee in his individual capacity.” Rensin v. State, Office of the Attorney General, 18 So.3d 572, 574 (Fla. 1st DCA 2009) (alterations in original) (quoting Doe v. Thompson, 620 So.2d 1004, 1006 (Fla.1993)). The corporate shield doctrine also applies to a nonresident who acts in a representative capacity on behalf of a limited liability company. Stomar, Inc. v. Lucky Seven Riverboat Co., L.L.C., 821 So.2d 1183,1187 (Fla. 4th DCA 2002). However, “a nonresident corporate officer is subject to personal jurisdiction if the officer directed ‘fraud or other intentional misconduct’ at parties in the State of Florida.” Rensin, 18 So.3d at 575 (citing Doe, 620 So.2d at 1006 n. 1).

The plaintiff may establish personal jurisdiction of the upstream, nonresident parent in three ways. First, the plaintiff may show that “the non-Florida parent company independently satisfies the test for jurisdiction under Florida’s long-arm statutes.” Qualley v. Int’l Air Serv. Co., 595 So.2d 194, 196 (Fla. 3d DCA 1992) (citing MacMillan-Bloedel, Ltd. v. Canada, 391 So.2d 749, 750 (Fla. 5th DCA 1980)). Second, the plaintiff may establish facts that justify piercing the corporate veil. See Salley, 2010 WL 5136211, at *4; House, 60 F.Supp.2d at 608-13 (piercing the corporate veil of several upstream owners of a nursing home based on a strong factual showing by the plaintiff). See generally, Dinizulu & Matta, The Mul-ti-Level Nursing Home Corporate Structure (discussing piercing the corporate veil as a means of imposing liability on the nursing home’s lender, landowner, and management companies); John A. Pearce II, John J. O’Brien, & Derek A. Rapisarda, Protecting Nursing Home Residents from Attacks on Their Ability to Recover Damages, 61 Rutgers L. Rev. 705, 732 — 45 (Spring 2009) (discussing piercing the corporate veil in the context of nursing home litigation). Third, the plaintiff may show that the parent exercises sufficient control over the subsidiary to render the subsidiary an agent or alter ego of the parent, thus establishing jurisdiction. Enic, PLC v. F.F. South & Co., 870 So.2d 888, 891 (Fla. 5th DCA 2004). However, “[t]he amount of control exercised by the parent must be high and very significant.” Id. (citing State v. Am. Tobacco Co., 707 So.2d 851, 855 (Fla. 4th DCA 1998)); see also Salley, 2010 WL 5136211, at *4-5 (holding that an upstream, nonresident parent did not exercise sufficient control of its nursing home subsidiary to establish an agency relationship sufficient to support personal jurisdiction); Extendicare, Inc. v. Estate of McGillen, 957 So.2d 58, 64 (Fla. 5th DCA 2007) (holding that the plaintiff failed to offer evidence that the upstream, nonresident parent of a nursing home controlled its subsidiaries to the extent that an agency relationship existed that would support long-arm jurisdiction).

In this case, Ms. Knobloch established only that the Appellants have indirect ownership interests in the nursing home’s operating and management companies. But nothing about the Appellants’ financial interests in the nursing home is related in any way to Ms. Knobloch’s claims. Ms. Knobloch has failed to establish any connexity between the Appellants’ financial interests in the nursing home and the alleged abuse from which her claims arise. See Camp Illahee Investors, 870 So.2d at 85 (“By its terms, section 48.193(1) requires connexity between the defendant’s activities and the cause of action.”). Ms. Knobloch has also failed to show that the Appellants have sufficient minimum contacts with Florida to establish personal jurisdiction over them here. Thus Ms. Knobloch did not prove a basis for long-arm jurisdiction over the Appellants under section 48.193(l)(a). In addition, because the Appellants’ only “activity” in Florida is their indirect ownership interests in the nursing home’s operating and management companies and because, as discussed below, they are not engaged in the day-to-day operations of the nursing home, we conclude that Ms. Knobloch did not establish that the Appellants are engaged in substantial and not isolated activity in Florida. Accordingly, Ms. Knobloch did not prove a basis for long-arm jurisdiction against the Appellants under section 48.193(2).

Ms. Knobloch argues that she has demonstrated that the Appellants have sufficient control over the day-to-day operations of the nursing home sufficient to establish an agency relationship. We disagree. Ms. Fierro’s affidavit established nothing more than that the Appellants had significant ownership interests in the nursing home. As we have noted, such ownership, without more, is insufficient to establish personal jurisdiction over a nonresident defendant. Hilltopper Holding Corp. v. Estate of Cutchin, 955 So.2d 598, 603 (Fla. 2d DCA 2007); Extendicare, 957 So.2d at 64; see also Schwartzberg v. Estate of Simoneau, 77 So.3d 913, 914 (Fla. 1st DCA 2012) (reversing a circuit court’s order denying a motion to dismiss for lack of personal jurisdiction made by substantially the same defendants as in this case).

VII. CONCLUSION

The circuit court erred in finding that it had personal jurisdiction of the Appellants. Accordingly, we reverse the order under review and remand with directions to grant the Appellants’ motions to dismiss.

Reversed and remanded with directions.

CASANUEVA and LaROSE, JJ., Concur.

      . We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(c)(i).

      . The New York trusts also had an indirect ownership interest in New Surfside Administrators, LLC. We are unable to determine the role of New Surfside Administrators, LLC, from our record.

      . The letter and the diagrams are the source for much of the discussion concerning the structure of the ownership and operation of die nursing home and its related companies in part II of this opinion.

      . Several commentators have referred to this theory in the context of nursing home litigation as "direct participant liability.” Couch, supra, at 53; Dinizulu, The Multi-Level Nursing Home Corporate Structure; Michael J. Griffin, Defense of Corporate Parents: Managing Direct Participant Liability Claims, 52 No. 7 DRI For Def. 17 (July 2010).


author: DAVIS, Judge.

text:
    In re Guardianship of Josefa KESISH. Joan Nelson Hook, Appellant, v. Paula Rego, Guardian, Appellee.
    No. 2D11-3914.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2012.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Michael W. Connors of Michael W. Connors, P.A., North Palm Beach, for Appellant.
    No appearance for Appellee.
   DAVIS, Judge.

Joan Nelson Hook challenges the trial court’s order setting attorney’s fees for her representation of the Guardianship of Josefa Kesish. Because the trial court’s order is not supported by competent, substantial evidence, we reverse.

Attorney Hook is a certified elder law attorney who has practiced as a member of the Florida Bar in the Sixth Circuit for eighteen years. She regularly represents guardianships as a part of her practice, often in the capacity of court-appointed counsel.

Mrs. Kesish, the seventy-two-year-old ward, sought a voluntary guardianship after she and her husband had been defrauded of more than a million dollars by an insurance company. As part of the process, she was examined by a physician, who concluded that she was competent to make the decision to request the voluntary guardianship. Paula Rego was appointed to be Mrs. Kesish’s guardian and was to represent her interests in seeking the return of the fraudulently taken funds. Attorney Hook undertook representation of the guardianship and was successful in obtaining a full refund from the insurance company without having to file a lawsuit.

Attorney Hook subsequently filed a petition for authorization of the payment of her fees. She attached to her petition her billing records, which indicated that she had expended forty-seven hours on behalf of the guardianship. She requested $250 per hour, for a total fee of $11,750. Although her records reflected time expended by paralegals, Attorney Hook did not seek compensation for paralegal time. Neither the guardian nor the ward objected to the amount requested.

The petition was referred to a court monitor, who reviewed the records and advised the trial court that Attorney Hook had done an “A+” job and that the number of hours was reasonable. However, the monitor recommended a fee of $240 an hour. Without holding a hearing, the trial court entered an order reducing the hourly rate to $200 an hour for forty-seven hours and awarding a total fee of $9400.

Attorney Hook filed a motion for reconsideration of her request, attaching her own affidavit and the affidavits of two practicing attorneys in support of her request. A hearing was then held on the motion for reconsideration.

At that hearing, Attorney Hook presented the testimony of a practicing attorney who specializes in suits against insurance companies. He testified that his firm would take such a case only on a contingency fee basis and that thus his fee would have been considerably higher than $250 an hour. He added that the $250 per hour rate was very reasonable for a board-certified attorney, especially in light of the highly favorable results Attorney Hook obtained. Attorney Hook’s second witness was a guardianship attorney who is board certified in elder law. He testified that he charges $250 an hour or more for such work.

Attorney Hook then testified that her standard rate is $250 an hour and that she has been charging that rate since she became board certified in elder law in 1999.

Following the hearing, the trial court entered an order denying the motion for reconsideration and affirming the prior authorization of $200 an hour for forty-seven hours. This was error.

“[A]n attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered.” § 744.108(1), Fla. Stat. (2010). Section 744.108(2)(a)-(i) sets forth the criteria that the court shall consider in determining a reasonable attorney’s fee, including but not limited to “[t]he time and labor required,” “[t]he fee customarily charged in the locality for similar services,” “[t]he results obtained,” and “[t]he experience, reputation, diligence, and ability of the person performing the service.” And the order awarding fees “must set forth the basis for the award, including [ (1) ] the hours determined to be compensable, [ (2) ] the hourly rate, and [(3)] the other factors considered in arriving at the award.” Thorpe v. Myers, 67 So.3d 338, 346 (Fla. 2d DCA 2011); see also Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003) (“[A]n award of attorney’s fees must ... contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.”), cited in Thorpe, 67 So.3d at 346. Only the reasonableness of the hourly rate is at issue here.

Although the determination of a reasonable hourly rate is left to the discretion of the court, there must be competent, substantial evidence to support the award. Cf In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000) (“The amount of a guardian fee is entrusted to the discretion of the circuit court, and its determination will not be disturbed unless there is a lack of competent substantial evidence to support the award.”). The order entered in this case fails to set out the considerations that resulted in the trial court’s reduction of the only fee established by the evidence presented.

A review of the instant record, however, indicates some of the factors that apparently influenced the trial court’s determination that $200 per hour is a reasonable rate in the local legal community for guardianship work. First, during the hearing, the trial judge made reference to the “local rules” on guardianship attorney’s fees. Although it is unclear to what local rules he was referring, there is a 2006 administrative order in place in Pasco County that sets the fees for court-appointed attorneys in guardianships for solvent wards. By administrative order no. 2006-041 PA/PI-CIR, a court-appointed attorney is authorized to petition for fees up to $175 per hour to be paid by a solvent ward. However, Attorney Hook was not a court-appointed attorney; she was privately retained. Additionally, neither the guardian nor the ward opposed her specific fee request.

Second, the trial judge indicated that he did not view Attorney Hook’s success in obtaining the refund to be significant: “I was in a lot of estate planning. I’ve had several cases like this. Every one of them was successful because of the fact the insurance company did not want their name in the paper that one of their agents had sold something.”

Additionally, the trial judge asked Attorney Hook some follow-up questions regarding her testimony. On direct, Attorney Hook testified that she previously had been involved in a guardianship case wherein the same trial judge had awarded an attorney $240 an hour. Regarding that testimony, the court asked Attorney Hook if she was aware that the other attorney was first admitted to the Florida Bar in 1979, was certified in wills and trusts, and was a graduate of Columbia University. Finally, the trial judge inquired of Attorney Hook as follows: “Do you also know that before I got up here that the fee[ ] for certified attorneys was $200 per hour?”

None of these factors are competent evidence upon which the trial court could determine a reasonable hourly rate for the work Attorney Hook rendered. See United States v. Berber-Tinoco, 510 F.3d 1083, 1091 (9th Cir.2007) (“A trial judge is not a competent witness to such factual issues. Nor can the judge take judicial notice of such issues. A trial judge is prohibited from relying on his personal experience to support the taking of judicial notice.” (citation omitted) (internal quotation marks omitted)); see also Hale v. Shear Express, Inc., 946 So.2d 94, 96 (Fla. 1st DCA 2006) (stating that a reduction of the requested fee is an abuse of discretion if “based on the judge’s subjective belief and personal experience”).

Instead, the only evidence before the court — the testimony of Attorney Hook and her two expert witnesses — indicated that $250 per hour was a reasonable rate in the community for the work performed. “[A] ruling that is unsupported by the record constitutes a clear abuse of discretion.” Moore v. Gillett, 96 So.3d 933 (Fla. 2d DCA 2012).

Because we conclude that the trial court abused its discretion in awarding $200 per hour, we reverse the order and remand for the entry of an amended order awarding a fee of $250 per hour for the forty-seven hours found to be reasonable.

Reversed and remanded.

SILBERMAN, C.J., and WALLACE, J., Concur.

      . At the hearing, the trial court questioned whether the ward had the ability to make such a decision. However, this was a voluntary guardianship which by its nature requires a finding that the ward is mentally competent to transfer authority over her business decisions to the guardian on a voluntary basis. See Fla. Prob. R. 5.552.

      . We note that the attorney representing Attorney Hook at the hearing, the attorneys testifying at the hearing, and appellate counsel have all provided services without seeking compensation.


author: PER CURIAM.

text:
    AAR MANUFACTURING, INC., et al., Petitioners, v. MATRIX COMPOSITES, INC., Respondent.
    No. 5D11-3802.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 2012.
    Rehearing and Rehearing En Banc Denied Oct. 10, 2012.

      Sean M. McDonough of Wilson Elser Moskowitz Edelman & Dicker LLP, Orlando, for Petitioner, AAR Manufacturing.
    Nicholas A. Shannin of Page, Eiehen-blatt, Bernbaum & Bennett, P.A., and John Y. Benford of Benford Law Firm, P.A., Orlando, for Respondent.
   PER CURIAM.

Petitioner, AAR Manufacturing, Inc. (“AAR”), seeks certiorari relief from the trial court’s non-final order denying its motion for a protective order in this trade secret misappropriation action. Pursuant to the motion, AAR sought to prevent the discovery of its own trade secrets until such time as Respondent, Matrix Composites, Inc. (“Matrix”), had identified with reasonable particularity the trade secrets allegedly misappropriated by AAR, as required by the terms of the parties’ agreed-upon discovery order. Following an evi-dentiary hearing, the trial court denied AAR’s motion, finding that Matrix had identified with reasonable particularity its trade secrets related to: (1) the trapped rubber molding process; (2) the resin transfer molding process; and (3) compression molding of continuous fiber thermoplastic composite. The trial court ordered AAR to produce within sixty days all documents requested in Matrix’s first request for production.

We are compelled to grant the petition to the extent the trial court concluded that Matrix identified with reasonable particularity the trade secrets associated with the resin transfer molding process and compression molding of continuous fiber thermoplastic composite. It is clear from the record that the parties and the trial court agreed the evidentiary hearing below was to be limited solely to the trade secrets related to the trapped rubber molding process. Matrix’s identification of the trade secrets associated with the resin transfer molding process and compression molding of continuous fiber thermoplastic composite was not before the trial court for its consideration. Accordingly, the trial court’s order is overbroad to the extent that it encompasses these two trade secret areas. However, we deny the instant petition to the extent that AAR challenges the trial court’s determination that Matrix identified with reasonable particularity its trade secrets involving its trapped rubber molding process because we conclude that there has been no departure from the essential requirements of the law. See McDonald’s Rests, of Fla., Inc. v. Doe, 87 So.3d 791, 793 (Fla. 2d DCA 2012).

Furthermore, we reject AAR’s argument that the trial court departed from the essential requirements of the law by failing to make a threshold finding that Matrix’s allegedly misappropriated trade secrets actually existed before ordering AAR to disclose its own trade secrets. In trade secret misappropriation cases, a plaintiff is required to identify with reasonable particularity the trade secrets at issue before proceeding with discovery. See Del Monte Fresh Produce Co. v. Dole Food Co., 148 F.Supp.2d 1322, 1324 (S.D.Fla.2001) (noting difference between trade secret misappropriation cases and cases involving trade secret privilege, and explaining trade secrets are ultimate issue to be decided by court in misappropriation cases). To the extent that Revello Medical Management, Inc. v. Med-Data Infotech USA, Inc., 50 So.3d 678 (Fla. 2d DCA 2010), can be read to require a threshold finding as to the existence of the trade secret in misappropriation cases, we reject that notion.

PETITION GRANTED in part; DENIED in part.

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Victoria HOWELL, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D12-0661.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2012.
    Rehearing Denied Oct. 11, 2012.

      Victoria M. Howell, pro se, Appellant.
    Nicholas Ramonello, General Counsel, and Wings S. Benton, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.110(c).

MARSTILLER, RAY, and SWANSON, JJ., concur.


author: MARSTILLER, J.

text:
    Donald A. WOJNOWSKI, Jr., Appellant, v. STATE of Florida, OFFICE OF FINANCIAL REGULATION, Appellee.
    No. 1D11-6767.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2012.
    Rehearing Denied Oct. 10, 2012.
    Todd A. Zuckerbrod of Todd A. Zucker-brod, P.A., Boca Raton, for Appellant.
    Peter Schwarz and Tobi C. Pam, Senior Attorneys, Tallahassee, for Appellee.
   MARSTILLER, J.

Appellant, Donald A. Wojnowski, Jr., challenges a final order of the Florida Office of Financial Regulation (“OFR”) denying his application for registration as an associated person of a securities dealer. OFR based the denial on the fact that Appellant was the subject of a Financial Industry Regulatory Authority (“FINRA”) arbitration award finding that Appellant sold unregistered securities in violation of section 517.07, Florida Statutes, and committed securities fraud in violation of Section 517.301, Florida Statutes. Appellant argues that OFR cannot “rely on the clearly erroneous and unsubstantiated findings of a single arbitrator” to deny his application for registration. We conclude that the arbitration award satisfies the requirements of section 517.161(1), Florida Statutes (2011), which authorizes OFR to deny registration to one who has been the subject of a national securities association decision involving a violation of state securities law. Accordingly, we affirm the order on appeal.

In May 2011, OFR received a “Form U-4” submitted by Appellant requesting registration in Florida as an associated person of Meyers Associates, L.P., a New York securities firm. Based on information contained in the application form, OFR determined that Appellant was one of seven named respondents in a 2010 FINRA arbitration resulting in the following decision and award:

Respondents ... Wojnowski [et al.] ... are liable on all of the claims asserted by Claimants, as follows: (1) as to misrepresentation, Respondents are in violation of Florida Statute § 517.301; (2) as to violation of [chapter] 517, Respondents sold unregulated securities in violation of § 517.07; (3) as to breach of fiduciary . duty, Respondents violated FINRA Rule 2310, and breached their fiduciary duty by not using due diligence and by selling Claimants unsuitable securities; and, (4) as to failure to supervise, Respondents breached FINRA Rule 3010 by the failure to properly supervise.

The claimants were awarded $100,000 in compensatory damages, and $40,000 in punitive damages, for which all seven respondents were jointly and severally liable. The circuit court for the Fifteenth Judicial Circuit in Palm Beach County, Florida, subsequently rendered a final judgment confirming the arbitration award.

On October 7, 2011, OFR issued and served on Appellant notice of its intent to deny the application for registration. The notice referred to the FINRA arbitration decision and the judgment confirming the award as grounds for denial. As authority for the denial, the notice cited inter alia, section 517.161(l)(m), Florida Statutes. The notice further advised Appellant of his right to request an administrative hearing within 21 days after receiving the notice to challenge the agency’s intended action. When Appellant failed to submit a timely, legally sufficient petition for hearing— and he does not argue otherwise on appeal — OFR entered a final order denying Appellant’s application for registration on the grounds set forth in the notice of intent to deny.

Appellant argues that the FINRA arbitration award is based on “erroneous and unsubstantiated” findings, and therefore, cannot serve as grounds for denying his registration application. However, when Appellant failed to timely seek an administrative hearing to challenge the facts supporting OFR’s intended action, he waived any further opportunity to do so. See Diaz v. Dep’t of Bus. & Prof l Reg., 21 So.3d 919, 920 (Fla. 3d DCA 2009); Fla. Admin. Code R. 28-106.111(4). Consequently, on appeal, he may only argue that the agency’s conclusions of law based on the facts are incorrect.

Section 517.161(l)(m), Florida Statutes (2011), permits OFR to deny registration to an applicant who:

Has been the subject of any decision, finding, injunction, suspension, prohibition, revocation, denial, judgment, or administrative order by any court of competent jurisdiction, administrative law judge, or by any state or federal agency, national securities, commodities, or option exchange, or national securities, commodities, or option association, involving a violation of any federal or state securities or commodities law or any rule or regulation promulgated thereunder, or any rule or regulation of any national securities, commodities, or options exchange or national securities, commodities, or options association....

Under this provision, OFR could deny Appellant’s application for registration if (1) he has been the subject of any decision, (2) by a court, administrative law judge, federal agency, national securities exchange, or national securities association, (3) involving a violation of state securities law. OFR concluded that Appellant “has been found by a national securities association ... to have violated provisions of Chapter 517, Florida Statutes, specifically Section 517.301 and 517.07, Florida Statutes, which [is] grounds for denial pursuant to [section] 517.161(l)(m), Florida Statutes.”

We find no error in this conclusion. The FINRA arbitration award constitutes the type of “decision” contemplated by the statute. Appellant clearly was the subject of such decision, having been a named respondent in the arbitration and found liable to the claimants for damages. Further, FINRA is a non-governmental independent entity through which member firms within the securities industry in the United States self-regulate. OFR thus defining FINRA as a “national securities association” is not clearly erroneous. See State Bd. of Admin. v. Huberty, 46 So.3d 1144, 1146 (Fla. 1st DCA 2010) (appellate court defers to agency’s interpretation of statute it administers unless such interpretation is clearly erroneous). Finally, the arbitration award found that Appellant violated section 517.07, Florida Statutes, by selling unregistered securities, and violated section 517.301, Florida Statutes, by misrepresenting information in the course of securities transaction. Thus, the FIN-RA arbitration award satisfies the requirements of section 517.161(l)(m), and OFR appropriately relied on it to deny Appellant’s registration application.

AFFIRMED.

THOMAS and WETHERELL, JJ„ concur.

      . See § 517.021(2), Fla. Stat. (2012) (defining "associated person”); § 517.12, Fla. Stat. (2012) (setting out procedure to apply for registration).

      . Appellant submitted a letter dated October 17, 2011, requesting an administrative hearing. However, because the request did not conform to the requirements for hearing petitions under Florida Administrative Code Rules 28-106.201(2) or 28-106.301(2), OFR gave Appellant an additional 21 days to submit an amended petition. Appellant failed to do so.

      . We review agency conclusions of law de novo. See § 120.68(7), Fla. Stat. (2012); Moreland v. Agency for Persons With Disabilities, 19 So.3d 1009, 1011 (Fla. 1st DCA 2009).

      . See Financial Industry Regulatory Authority, http://www.finra.org/AboutPINRAI (last accessed August 24, 2012).


author: ALTENBERND, Judge.

text:
    Joseph SAFRANY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5980.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Joseph Safrany appeals the amended sentences entered on his resentencing for three counts of DUI manslaughter and one count of DUI causing serious bodily injury for offenses that occurred in April 2000. These amended sentences were entered as a result of a resentencing hearing afforded to Mr. Safrany based on a postconviction determination of ineffective assistance of counsel at sentencing. We reverse and remand.

Mr. Safrany had already begun serving concurrent life prison sentences on the three counts of DUI manslaughter when he was granted this resentencing hearing. At resentencing, the trial court orally pronounced three fifteen-year terms of imprisonment on Mr. Safrany’s three convictions for DUI manslaughter, which were to be served consecutively rather than concurrently. The written amended sentences properly reflected this oral pronouncement. Unfortunately, the three sentences did not adequately address credit for time served in the context of a shift from concurrent to consecutive sentences.

The trial court also orally pronounced a sentence of five years’ imprisonment on Mr. Safrany’s conviction for DUI causing serious bodily injury, count seven, but the written amended sentence incorrectly re-fleeted a term of fifteen years’ imprisonment. During the pendency of this appeal, Mr. Safrany’s appellate counsel filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), alerting the trial court to this sentencing error. In the motion, Mr. Saf-rany’s counsel also alerted the trial court to the error in credit for time served on the three convictions for DUI manslaughter, counts one, two, and three, in light of the holding in State v. Rabedeau, 2 So.3d 191 (Fla.2009). The trial court, however, failed to address the motion to correct sentencing error; and it is thus deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B).

As properly conceded by the State, the amended sentence on count seven must be corrected. We note that Mr. Safrany has fully served his sentence on the conviction for count seven. On remand, care should be taken to assure that the correction of the sentence does not result in a new sentence that might appear to require additional time in prison on count seven. Additionally, pursuant to Rabedeau, 2 So.3d at 193, Mr. Safrany is entitled to credit on each of his consecutive sentences on counts one, two, and three, for the time he served on his original concurrent sentences on these three counts.

Reversed and remanded.

SILBERMAN, C.J., and DAVIS, J., Concur.

      . This is not Mr. Safrany’s first visit to this court. See Safrany v. State, 895 So.2d 1145 (Fla. 2d DCA 2005) (granting in part and denying in part a petition for ineffective assistance of appellate counsel); Safrany v. State, 96 So.3d 897 (Fla. 2d DCA 2004) (affirming without opinion appeal of judgments and sentences).

      . We reject the State’s suggestion that this matter requires an entire resentencing.


author: MORRIS, Judge.

text:
    Doretha E. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3635.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Jones challenges the revocation of her probation and her five-year prison sentence for aggravated battery with a firearm. We affirm the revocation and sentence without further comment. However, we must remand the revocation order for correction as explained herein.

In the revocation order, the trial court found that Jones admitted to violating conditions (1), (2), (3), (5), (10), (12), and (13) of her probation. This does not accurately reflect what occurred at the violation of probation hearing. Rather, at the hearing, Jones acknowledged violations of conditions (1), (3), and (10), but she contested the willful and substantial nature of those violations. Furthermore, the trial court specifically found that the State failed to prove violations of conditions (2), (5), (12), and (13).

Accordingly, we remand to the trial court with directions that it strike from the revocation order any reference to violations of conditions (2), (5), (12), and (13). We also direct the trial court to strike the part of the order which indicates Jones admitted violating her probation. See Underwood v. State, 455 So.2d 1133, 1134 (Fla. 2d DCA 1984).

Affirmed and remanded.

NORTHCUTT and BLACK, JJ„ Concur.


text:
    Eugene SWANSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4595.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.
    Eugene Swanson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Eugene Swanson appeals the summary denial of his amended motion to correct sentence filed in accordance with Florida Rule of Criminal Procedure 3.800(a). On February 15, 1980, Swanson was found guilty of sexual battery with a deadly weapon (count one) and aggravated battery with a deadly weapon (count two). The trial court sentenced Swanson to ninety-nine years’ imprisonment on count one and thirty years’ imprisonment as a habitual felony offender on count two. The sentences were designated to run consecutively. In his motion, Swanson alleged that his sentences should run concurrently because consecutive habitual felony offender sentences for offenses arising out of a single criminal episode violate the principles announced in Hale v. State, 630 So.2d 521 (Fla.1993). For the reasons stated below, we reverse the postconviction court’s order.

We ordered the State to show cause why Swanson should not be granted relief. In its response, the State conceded that an excerpt from the victim’s trial testimony would be facially sufficient to establish a prima facie claim that both of Swanson’s offenses took place during a single criminal episode. Nevertheless, the State argued that Swanson’s claim was still procedurally insufficient because he failed to identify the specific transcript page numbers where the testimony in question could be found. However, such a standard places an undue burden on defendants. A defendant is not required to cite exact page numbers; he or she must only “identify with particularity the nonhearsay record documents upon which he [or she] relies.” Speas v. State, 887 So.2d 416, 418 (Fla. 2d DCA2004).

In the alternative argument in its response, the State conceded that Swanson’s consecutive sentences are illegal under the principles announced in Hale. However, the State’s suggested remedy for the illegality is different from the approach we employ here. If Swanson’s conviction for aggravated battery is not subject to a habitual felony offender enhancement, the maximum sentence for that offense is fifteen years, not thirty. The State contends that running the ninety-nine-year sentence for sexual battery concurrently with the reduced fifteen-year sentence for aggravated battery would defeat the trial court’s intent to impose the longest period of time for the two offenses. The State suggests restructuring the sentences by eliminating the habitual felony offender term completely and running the maximum fifteen-year term for aggravated battery consecutively with the ninety-nine-year term imposed for sexual battery. The resulting sentence would total 114 years, fifteen years less than Swanson’s current 129-year sentence. We reject this approach as being inconsistent with Hale.

Accordingly, we accept the State’s concession that Swanson’s consecutive sentences are illegal under Hale, hold that Swanson’s consecutive sentences are illegal, and reverse the postconviction court’s order. On remand, the postconviction court shall correct Swanson’s sentences by redesignating them to run concurrently.

Reversed and remanded.

VILLANTI, WALLACE, and MORRIS, JJ., Concur.

      . When Swanson committed his offenses in 1979, sexual battery with a deadly weapon was a life felony punishable "by a term of imprisonment for life or for a term of years not less than 30.” § 775.082(3)(a), Fla. Stat. (1979).


text:
    STATE of Florida, Appellant, v. Dominique HIRD, Appellee.
    No. 2D11-5003.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

The order granting Dominique Hird’s motion to dismiss is reversed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

Reversed and remanded.

SILBERMAN, C.J., and KELLY and LaROSE, JJ., Concur.


author: BLACK, Judge.

text:
    Peter James HOFFMAN, Appellant, v. Melodie Joy HOFFMAN, Appellee.
    No. 2D11-5646.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
    Melodie Joy Hoffman, pro se.
   BLACK, Judge.

In this postdissolution proceeding, Peter Hoffman, the former husband, challenges the trial court’s order requiring him to pay monthly child support of $969.48. He argues that the court lacked competent, substantial evidence on which to find the former husband’s monthly income was $3000 and, as a result, abused its discretion in basing the child support calculation thereon. We agree.

At the evidentiary hearing on the supplemental petition to modify parenting plan and other relief filed by Melodie Hoffman, the former wife, both the former husband and the former wife testified regarding the former husband’s employment. The former husband testified that after looking for employment as a teacher in Florida and in Michigan and finding none, he accepted a teaching position in the People’s Republic of China. He submitted a letter from his employer, Sino-star Foreign Language Institute Training Center, stating that his income for the period of December 13, 2010, to June 17, 2011, was 39,547 Chinese Yuan. The former husband testified that the exchange rate at that time was 6.5 Chinese Yuan to one U.S. Dollar. He also submitted evidence that his annual income in 2009 was $1347 and $2955 in 2010. The former wife testified that teaching positions were available in Polk County, Florida with annual salaries between $32,000 and $35,000.

In calculating the former husband’s child support obligation, the trial court stated:

I’ve got this problem in terms of his salary. He’s paid in yen [sic] and he’s living in the People’s Republic of China. And you’re telling me that I should only figure his income based on the fact that he’s saying in his financial affidavit that he’s getting about $923 a month.
But then I look at his rent, and it’s in U.S. dollars, $46 a month, and his food costs for the month are $76 a month. And I just understand that the cost of living is tremendously less in China than it is in the United States, and that [$]923 a month that he’s earning over there is simply not realistic when you try to figure it against his own cost of living over there.
And so what I’ve decided to do is — and I did this on sort of a pro rata ratio-type thing in my mind — decide that his net monthly income is the equivalent of earning in the U.S. $3,000 per month.

Child support awards must be based upon competent, substantial evidence of a party’s net income. Vanzant v. Vanzant, 82 So.3d 991, 993 (Fla. 1st DCA 2011); see Warren v. Warren, 84 So.3d 461, 461 (Fla. 2d DCA 2012). Here, there is no evidence in the record supporting the trial court’s “pro rata ratio-type” determination that the former husband’s monthly income was $3000. Nor is there any indication that the court imputed income to the former husband for the period after December 10, 2010, or any evidence supporting the imputation necessary to reach a monthly income of $3000. See § 61.30(2)(b), Fla. Stat. (2009); Bator v. Osborne, 983 So.2d 1198, 1200 (Fla. 2d DCA 2008). We therefore reverse and remand for further proceedings with regard to the former husband’s child support obligation beginning December 13, 2010.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.

      . The order on appeal addresses issues other than child support; however, the former husband challenges only his child support obligation.


text:
    STATE of Florida, Appellant, v. Ronald JACKSON, Appellee.
    No. 2D11-6298.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

We reverse the trial court’s dismissal of the charges against Ronald Jackson based on the constitutionality of section 893.13, Florida Statutes (2011). See State v. Adkins, 96 So.3d 412 (Fla.2012).

Reversed and remanded.

SILBERMAN, C.J., and WALLACE and BLACK, JJ., Concur.


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Kipp Karson KELLY, Appellee.
    No. 2D12-71.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State appeals the dismissal of an information filed against Kipp Karson Kelly charging him with possession of a controlled substance. The trial court dismissed the information based on its finding that section . 893.13, Florida Statutes (2011), was unconstitutional pursuant to Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011), rev’d, 691 F.3d 1348 (11th Cir.2012). Because the Florida Supreme Court upheld the constitutionality of section 893.13 in State v. Adkins, 96 So.3d 412 (Fla.2012), we reverse the order of dismissal and remand with instructions that the trial court reinstate the charges against Mr. Kelly.

WHATLEY and CRENSHAW, JJ., Concur.


text:
    Steven DOMINGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-340.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2012.
   CASANUEVA, Judge.

Steven Dominguez appeals the order denying his motion to correct illegal sentence, which the postconviction court treated as if filed under Florida Rule of Criminal Procedure 3.800(a). Because the relief Mr. Dominguez seeks is not available unless he moves to withdraw his plea, we reverse and remand with directions that the postconviction court treat Mr. Dominguez’s motion as filed under rule 3.850.

In circuit court case number OS-12391, Mr. Dominguez pleaded to the lesser offense of felony battery pursuant to section 784.03, Florida Statutes (2009), in exchange for a sentence of five years as a prison releasee reoffender (PRR). In his motion to correct illegal sentence, he argued that he was illegally sentenced as a PRR because felony battery is neither a qualifying offense for PRR sentencing, see § 775.082(9)(a)(l), Fla. Stat. (2009), nor a forcible felony for purposes of the catchall provision of the PRR statute. The catchall provision allows for PRR sentencing for “[a]ny felony that involves the use or threat of physical force or violence against an individual.” § 775.082(9)(a)(l)(o). Mr. Dominguez relied on Spradlin v. State, 967 So.2d 376 (Fla. 4th DCA 2007), to support his claim.

Spradlin, like Mr. Dominguez, was convicted of felony battery under section 784.03(2), which reclassifies simple battery to a third-degree felony upon a second battery conviction. Noting that simple battery constitutes any intentional touching, however slight, the Fourth District held “that a felony battery does not, of necessity, involve the requisite level of physical force or violence contemplated by the PRR catch-all provision.” Id. at 378; accord Johns v. State, 971 So.2d 271, 272 (Fla. 1st DCA 2008) (“simple battery reclassified merely because of the offender’s prior battery conviction ... can never be a forcible felony, and so will not support a prison releasee reoffender ... sentence”).

By contrast, felony battery under section 784.041 — which requires that the defendant cause great bodily harm, permanent disability, or permanent disfigurement to the victim — does qualify for PRR sentencing because it cannot be committed without the use of physical force or violence. See Brooks v. State, 93 So.3d 402 (Fla. 2d DCA 2012); State v. Williams, 9 So.3d 658, 660 (Fla. 4th DCA 2009).

Although Mr. Dominguez was designated a PRR as the result of a negotiated plea agreement, “a defendant’s right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.” Torbert v. State, 832 So.2d 203, 205 (Fla. 4th DCA 2002); accord Wheeler v. State, 864 So.2d 492, 492 (Fla. 5th DCA 2004) (“an illegal sentence cannot be imposed even as part of a negotiated plea agreement”). But when a defendant challenges a sentence imposed pursuant to a plea agreement in a rule 3.800(a) motion,

he is actually challenging the terms of [the] plea agreement and, thus, the resulting convictions. Because a plea withdrawal is a potential consequence in this case, [the defendant] must seek relief under rule 3.850. In that proceeding, the State will have the option to either agree to a resentencing or withdraw from the plea agreement and proceed to trial on the original charges.

Nedd v. State, 855 So.2d 664, 665 (Fla. 2d DCA 2003).

As in Nedd, the relief Mr. Dominguez seeks is not available unless he moves to withdraw his plea. We note that Mr. Dominguez’s motion was appropriately sworn and filed within the two-year limit of rule 3.850; thus, the postconviction court could have treated it as filed under rule 3.850. However, the motion is facially insufficient because Mr. Dominguez does not specifically ask to withdraw his plea. Accordingly, we reverse the postconviction court’s order denying relief under rule 3.800(a) and remand for the postconviction court to consider Mr. Dominguez’s claim under rule 3.850, strike it as facially insufficient, and allow Mr. Dominguez thirty days in which to amend his claim, should he desire to do so.

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.


text:
    Antonio HARDY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4008.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2012.
    Antonio Hardy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., LEWIS and ROWE, JJ., concur.


text:
    Bobby Lee JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4272.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2012.
    Bobby Lee Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., LEWIS and ROWE, JJ., concur.


text:
    Gregory BLACKMON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4280.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2012.
    Gregory Blackmon, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., LEWIS and ROWE, JJ., concur.


text:
    Robert McLEVY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4383.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2012.
    Robert McLevy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., LEWIS and ROWE, JJ., concur.


text:
    Ona SNELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3386.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Nora Hutchinson Hall, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Derrick Keith STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3514.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.

      Andrew B. Greenlee and Cameron Eu-banks of Brownstone, P.A:, Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney Generál, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-Iee
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


author: PER CURIAM,

text:
    Joseph Anthony MOCERI, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4334.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM,

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr, 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Eric WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-136.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Andrea FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-606.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. See’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.