author: EMAS, J.

text:
    Rina KERZNER, Appellant, v. Stuart J. KERZNER and Dana A. Kerzner, Appellees.
    No. 3D10-3124.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Paglino & Degenhardt and Joseph S. Paglino, North Miami Beach, for appellant.

      Stuart Kerzner and Dana A. Kerzner, in proper persons.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   EMAS, J.

This is an appeal from an order and final judgment which determined that proceeds from the sale of a marital home, pursuant to the terms of a marital settlement agreement, were subject to homestead protection under the Florida Constitution. We affirm.

FACTS AND BACKGROUND

Stuart Kerzner (“Stuart”) and Dana Kerzner (“Dana”) were married in 2002 in Miami-Dade County. Several years later, Stuart filed a petition for dissolution of the marriage. Stuart and Dana negotiated and executed a marital settlement agreement and addendum (“MSA”), which described how their assets and liabilities would be divided. The primary asset of the marriage was the marital home; they agreed to sell the home and use the proceeds to pay various debts of each person. The MSA provided in pertinent part:

The parties agree that any lien or encumbrances on the marital home not specifically listed in the parties’ Marital Settlement Agreement or Addendums thereto as liens or encumbrances to be paid shall be the sole responsibility of the Husband and shall be paid from his share of the proceeds. This shall include, but not be limited to, lien(s) from the Husband’s attorney and any loans taken by the Husband except those listed in the Marital Settlement Agreement and Addendums thereto.

The trial court entered an Agreed Final Judgment of Dissolution of Marriage, approving and incorporating the MSA. A purchaser for the home was located and Tri-County Title Company was engaged to ensure the purchaser received clear title. Tri-County discovered three judgments totaling $284,715.50 against Stuart for unpaid child support owed to his first former wife, Rina Kerzner (“Rina”).

Upon discovering that Stuart and his current ex-wife were selling their marital home, Rina intervened in this action to make a claim against Stuart’s proceeds from the sale of the marital home. Rina contended that the terms of the MSA between Stuart and Dana established that Stuart did not have a good faith intent to reinvest the proceeds into a new homestead property and constituted a waiver of Stuart’s constitutional homestead protection.

To allow the sale to be completed, Stuart, Rina and Dana entered into an agreement releasing the marital home from the outstanding judgments, allowing the judgments to attach to Stuart’s share of the sales proceeds, which would be es-crowed pending a determination by the trial court whether, under the MSA, Rina’s judgments could be satisfied from Stuart’s share of the proceeds. The lower court ratified this agreement, the property sold on June 14, 2010, and Stuart’s share— $228,682.96 — was held in escrow.

The trial court thereafter conducted a hearing, took testimony, received memo-randa of law, and determined that the proceeds were protected from creditors by the homestead clause of the Florida Constitution. The court further determined that the terms of the MSA did not constitute a waiver of the homestead protection afforded under the Florida Constitution. Finally, the trial court determined, based upon Stuart’s testimony (and the testimony of Stuart’s realtor) that Stuart intended to use his share of the proceeds from the sale of the marital home to buy a new home. The court entered an order and judgment authorizing the release of the escrowed funds to Stuart, and this appeal followed.

ANALYSIS AND DISCUSSION

The interpretation of a marital settlement agreement is a matter of law, which we review de novo. Pita v. Pita, 16 So.3d 1018 (Fla. 3d DCA 2009). The Florida Homestead protections are found in Article X, Section 4 of the Florida Constitution as follows:

ARTICLE X, Section 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

A protected homestead may be voluntarily sold, and the funds will be protected so long as they are not commingled and are held for the sole purpose of acquiring another home within a reasonable period of time. McKean v. Warburton, 919 So.2d 341, 344 (Fla.2005); Rossano v. Britesmile, Inc., 919 So.2d 551 (Fla. 3d DCA 2005).

Stuart contended (and the trial court found) that the escrowed funds were protected by Florida’s homestead laws because at all times he intended that the funds from the sale would be used to acquire a new homestead property. Rina contended that Stuart did not possess a good faith intent to use his entire share of the sale proceeds to purchase a new home because he knowingly and voluntarily entered into the MSA with Dana, through which he agreed to satisfy “any lien and encumbrances on the marital home” not specifically listed in the MSA from the proceeds. This, Rina contends, constituted a waiver of the homestead protection.

Rina relies on Myers v. Lehrer, 671 So.2d 864 (Fla. 4th DCA 1996). In Myers, a husband and wife entered into a marital settlement agreement in which the husband agreed as follows:

Judgments, Liens and Lawsuits Satisfied: The Husband shall satisfy any and all outstanding judgments pending against him from his share of the proceeds received from the sale of the marital property. Husband shall further be responsible for any and all potential claims, lawsuits, or judgments pending against him individually or in connection with his profession.

Id. at 865. (Emphasis supplied).

Because the parties in Myers specifically agreed that the husband would satisfy “any and all outstanding judgments” against him from his share of the proceeds of the sale of the marital home, the Fourth District Court of Appeal found this language to be a waiver of Florida homestead protections:

The husband’s promise was given not to benefit a ‘hard creditor,’ but to appellant’s wife, a person entitled to the protection of the homestead provision as to the marital home. In the context of the divorce, the husband’s pledge served the purpose of resolving the financial matters of the marital relationship. The divorce final judgment incorporated the settlement agreement, making appellant’s promise enforceable by the wife in that proceeding. Once appellant’s promise acquired such legal significance it was akin to those written, informed homestead waivers which have been approved by the courts.

Id. at 866-867.

The instant case is distinguishable from Myers because the language of the MSA in the instant case did not contain the same broad language that “any and all outstanding judgments pending against ” the husband would be paid from the proceeds of the sale of the marital home. Instead, the parties here agreed that any “lien or encumbrances on the marital home not specifically listed” in the parties’ MSA would be Stuart’s sole responsibility and would be paid from his share of the proceeds. There was no language in the MSA that Stuart would satisfy “all judgments pending” against him. The trial court correctly found that the judgments Rina holds against Stuart do not constitute liens or encumbrances against the homestead property. See Prieto v. Eastern Nat. Bank, 719 So.2d 1264, 1266 (Fla. 3d DCA 1998) (judgment held by general creditor not a “lien or encumbrance” on homestead property). The language of the Florida Constitution expressly provides that the homestead is exempt from forced sale under process of any court, and “no judgment, decree or execution shall be a lien thereon.”

Affirmed.

      . Stuart hired a realtor to assist him in purchasing a new home, and entered into a real estate purchase agreement only a few months after the sale of the marital home.

      . We also note that in Myers, the former wife was a party to the martial settlement agreement she sought to enforce against the former husband. By contrast, Rina is a third party attempting to enforce the terms of an MSA to which she was not a party. The terms of the MSA between Stuart and Dana could not reasonably be construed or intended to act as a promise by Stuart to pay Rina’s judgments from the proceeds of the sale of the marital home of Stuart and Dana.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Christopher P. BACHMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6734.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.

      Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, Trida Meggs Pate, Chief, Criminal Division, Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006).

DAVIS, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    Eric BROUGHTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6071.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2011.
    Rehearing Denied Jan. 19, 2012.
    Eric Broughton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., HAWKES and WETHERELL, JJ., concur.


author: EHRLICH, MERRILEE, Associate Judge. WARNER, J.,

text:
    Gabriel MESA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5096.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Rehearing Denied Feb. 1, 2012.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   EHRLICH, MERRILEE, Associate Judge.

Defendant was charged by information with manufacture of marijuana, conspiracy to traffic in marijuana and possession of cocaine, alprazolam, amphetamine, hydro-codone, and oxycodone. Subsequently, defendant filed a motion to suppress challenging the legality of the search warrant for lack of probable cause. The trial court denied the motion. As a result, defendant entered into a plea agreement with the State where defendant entered a plea of nolo contendere to Counts 1, 3, 4, 7, and 8 of the information, while reserving his right to appeal the denial of his dispositive motion to suppress. The State nolle prossed counts 2, 5, and 6. This appeal followed. We agree with the defendant that the trial court erred in denying the motion to suppress and reverse.

At the hearing on the motion to suppress, the defendant agreed that there was no bad faith on the part of the officers in submitting the search warrant application and affidavit. Defendant also did not argue that the affiant omitted any material facts or made any material misrepresentations. Rather, defense counsel argued that the alleged facts therein were insufficient to support a finding of probable cause.

The entire affidavit in support of the application for the search warrant states as follows:

(a)Affiant was a police officer for two (2) years. He completed over 600 hours’ training beyond the basic police academy. He was also a Uniformed Crime Scene Investigator and had participated in multiple serious narcotics investigations and arrests.
(b) Within the past 30 days, a past proven and reliable confidential informant informed affiant that David Devroomen was operating a marijuana grow house from his residence, located at 525 N.W. Biscayne Dr. within the city limits of Port St. Lucie. Such was corroborated through affiant’s investigation. Devroo-men was utilizing a black 1994 Chevrolet pick-up truck (tag # R135K). A record check showed that the truck was registered to defendant.
(c) Defendant resided at 380 N.W. Dearmen St., which is in close proximity to Devroomen’s residence. Devroomen made numerous stops at defendant’s house.
(d) During the course of the investigation it was learned that Devroomen used defendant’s vehicle to further his criminal enterprise in the cultivation of marijuana.
(e) A check of FPL records for defendant’s residence displayed “erratic/abnormal patterns of electrical usage for the neighborhood. Note: The usage was compared to the other homes of the same size and in the immediate area.”
(f) After this initial information was gathered, surveillance of defendant’s residence revealed the following observations:
i. A wood fence around the air conditioning unit on the outside of the home. Per affiant, such fencing is typically used to conceal irregular use of air conditioning used to keep (marijuana) grow rooms cool from the overwhelming heat produced by the grow lights and fans.
ii. A humming noise heard from within the residence. Per affiant, such sound is commonly associated with electrical ballasts used within marijuana grow operations to supply electrical current to related growing hardware.
iii. There were sensor lights outside, at the four corners of the home. Per affiant, such were typically utilized at grow houses for counter surveillance in order to avoid detection.
iv. All windows of the residence, including the glass window in the front door had window treatments that do not allow light to escape. Per affiant, such is a common practice in marijuana grow houses to avoid detection; no one can see in.

Probable Cause

Where the issuance of a search warrant based upon a probable cause affidavit is at issue, the reviewing court is required to give “great deference” to the magistrate’s probable cause determination. State v. Abbey, 28 So.3d 208, 210 (Fla. 4th DCA 2010) (quoting State v. Rabb, 920 So.2d 1175, 1180 (Fla. 4th DCA 2006) (other internal quotation marks omitted)). The “duty of reviewing courts is simply to ensure that the magistrate had a substantial basis for ... concluding that probable cause existed.” Rabb, 920 So.2d at 1180 (internal quotation marks and alterations omitted).

The magistrate’s duty “is simply to make a practical, common-sense decision, whether, given all the circumstances set forth [within the four corners of] the affidavit before him ... there is a fair probability that ... evidence of a crime will be found in a particular place.” Id. at 1180 (quoting DeLaPaz v. State, 453 So.2d 445, 446 (Fla. 4th DCA 1984)); see also Pagan v. State, 830 So.2d 792, 806 (Fla.2002) (to determine whether probable cause exists, the coui’t must make a judgment based on the totality of the circumstances).

We conclude that there was not a substantial basis for concluding that probable cause existed for several reasons. First, the confidential informant’s information was only as to Devroomen and his residence. The confidential informant had no information or involvement with the defendant or his house.

Second, the affiant averred that Devroo-men utilized defendant’s pick-up truck; that affiant’s investigation disclosed that Devroomen used defendant’s pick-up truck to further his criminal enterprise; that Devroomen lives “in close proximity” to defendant’s residence; and that Devroo-men made numerous stops at defendant’s residence. What was missing, however, were the particulars. There are no dates, no amounts of times per week, per day or per month to quantify the “numerous” stops that Devroomen made to defendant’s home. There is no indication that Devroo-men visited defendant’s residence using defendant’s truck. There is no description of the numerous visits that Devroomen made to defendant’s residence that would provide indicia of characteristics of an ongoing marijuana grow house operation there. There is nothing within the four corners of the affidavit in support of the search warrant indicating that the police investigation and surveillance uncovered anything linking defendant to Devroomen’s illegal use of defendant’s truck by way of knowledge, action or otherwise. And, as to the two men living in “close proximity” to one another, they do not live on the same block, so just how close do they live to one another? How long has each lived there? Who moved there first? Was it recently? How the facts and lack thereof are presented to a magistrate are important as well.

Third, per the affiant, FPL records for defendant’s residence displayed “erratic/abnormal patterns of electrical usage for the neighborhood” when compared to other homes of the same size and in the immediate area. Once again, no particulars are provided to explain affiant’s conclusion of “erratic/abnormal patterns.” Were the comparable homes built within the same time frame as the defendant’s home? Were there insulation issues? How many people lived in those homes relative to the defendant’s household? Did appellant have visitors during this time-frame which was “season” in South Florida? Did the defendant’s home have old or new, energy efficient appliances? What was the actual electrical usage at defendant’s home and how much did it differ from his neighbors? Perhaps the most important particular missing is how does defendant’s electrical usage compare to Devroomen’s or other known marijuana grow houses?

Fourth, after the above information was gathered, surveillance of defendant’s house revealed a wood fence around the outside air conditioning unit, which is completely innocent by itself, and there are no facts indicating that the air conditioning unit was oversized or commercial grade. Rather, the unit here was just a regular residential unit, an eyesore that was hidden by a wood fence. What is not mentioned is whether neighboring residences also had fences or foliage around their outside air conditioning units. Further, unless ballasts used in marijuana grow houses have a special identifying humming noise, which the affiant does not aver, it is just as reasonable to believe that the humming noise coming from inside of the home was a common household appliance (dishwasher, washing machine, air conditioner, or otherwise). How long he listened is not provided by affiant. Similarly, the sensor security lights outside, at the four corners of the home, appear to be perfectly innocent, by themselves, as well. The affidavit for the search warrant does not reflect how many other residences in the neighborhood have the same or similar security measures or whether or not this was a high crime area for residential burglaries at that time, but this is a reasonably cautious homeowner’s action and a task that police constantly instruct homeowners to perform to protect themselves and their property against burglars. In addition, the fact that all of the windows, including the window in the front door, had window treatments that kept out light and prying eyes is not cause for suspicion in Florida. It keeps out the heat to keep residents more comfortable and their FPL bills lower and keeps would-be criminals from peeking in and seeing whether they may want to burglarize the home. The fact that it also kept the police’s prying eyes from seeing in through the windows does not make it suspicious.

The particulars delineated herein are suggestions only. They are not a list of requirements. The more particulars provided within the four corners of an affidavit in support of an application for search warrant, the more a mere possibility, warranting more investigation and surveillance, becomes a fair probability in a “close call” case such as this case. The actual facts of this case boil down to this. Defendant loaned Devroomen his truck. Dev-roomen visited defendant often. Devroo-men had a grow house. Devroomen used defendant’s truck to further his criminal enterprise. Was there more than guilt by association and a trained police officer’s gut instinct at that point? A “substantial” basis to conclude that probable cause existed for Devroomen and his home does not automatically carry over to defendant and his home without more.

Most obviously lacking was the fact that affiant got close enough to defendant’s residence to hear the humming noise inside and to try to look through various windows, but smelled no odor of cannabis emanating from the residence. See, e.g., Rabb, supra. There is nothing in the affidavit about typical marijuana grow house equipment or cannabis or otherwise going in or out of defendant’s home, especially by Devroomen utilizing defendant’s truck. There is nothing in the affidavit indicating that defendant’s residence had the same characteristics as Devroomen’s residence, a proven marijuana grow house, and what those characteristics are. There is nothing in the affidavit indicating trash pulls by affiant at defendant’s residence nor the use of confidential informants or even anonymous tipsters regarding defendant’s residence. Baker v. State, 762 So.2d 977, 978 (Fla. 4th DCA 2000).

The use of defendant’s truck by Devroo-men in the furtherance of a criminal enterprise and the fact that defendant lived nearby certainly gave affiant a good faith basis to take a good look at defendant. However, the equally innocent explanations for all that the police found (and did not find: the odor of cannabis) at defendant’s residence still merely suggested the possibility only, under the totality of the circumstances, without more particulars in the affidavit in support of the search warrant, that there was a nexus between the subject of the search and the residence to be searched.

Good Faith Exception

We also do not agree that the good faith exception applies in this instance. Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004), held that, where there is a lack of facts, a real paucity of facts, a very weak case, the law is well established that where “the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” When an affidavit for a search warrant is so lacking in indicia of probable cause “as to render an official’s belief in its existence entirely unreasonable,” the good faith exception is not applicable. Dyess v. State, 988 So.2d 146, 149 (Fla. 1st DCA 2008) (quoting Montgomery v. State, 584 So.2d 65, 68 (Fla. 1st DCA 1991)). The good faith exception does not apply where the affidavit is so lacking in probable cause and fails to establish a nexus between the objects of the search and the residence to be searched. Gonzalez v. State, 38 So.3d 226, 230 (Fla. 2d DCA 2010); Garcia, 872 So.2d at 330.

Although a magistrate’s probable cause determination is entitled to “great deference” when based upon a probable cause affidavit, the court should not defer if there is no substantial basis for concluding that probable cause existed. Rabb, 920 So.2d at 1180-81. As stated in Polk v. Williams, 565 So.2d 1387 (Fla. 5th DCA 1990):

Probable cause is a practical commonsense question. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 543 (1983). It is the probability of criminal activity, and not a prima facie showing of such activity which is the standard of probable cause. Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The determination of probable cause involves factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. U.S., 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1891 (1949). “As long as the magistrate had a substantial basis for concluding that search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547.

Polk, 565 So.2d at 1391. See also Pagan, 830 So.2d at 806. Here, from the actual facts placed before the magistrate regarding innocent characteristics of the home, and despite the information regarding trips by a drug grower using the defendant’s truck, there was not a “substantial” basis for concluding that a search of defendant’s home would uncover evidence of wrongdoing sufficient to allow the “good faith” exception to apply.

Reversed and Remanded.

POLEN, J., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur in the majority opinion. The facts in the probable cause affidavit show only innocent conduct with respect to the house sought to be searched, even considering them in the totality of the circumstances: 1) a wood fence around an air conditioning unit; 2) humming noise; 3) light sensors on the outside; and 4) windows covered with window treatments. In addition, the residence displayed “erratic/abnormal patterns” of electrical use (not higher than normal), whatever that means. These same features could describe many homes in South Florida. Even combined with the fact that an individual who was known to have his own grow house used the resident’s truck and was seen frequently at the home, this does not provide probable cause to believe that illegal activity was going on inside of this residence.

Most other cases involving search warrants of homes suspected of growing marijuana involve situations where officers either observed a defendant with growing equipment, see, e.g., Prado v. State, 306 Ga.App. 240, 701 S.E.2d 871 (2011), or more frequently the smell of marijuana emanating from the residence. See, e.g., Nieminski v. State, 60 So.3d 521 (Fla. 2d DCA 2011); State v. Arango, 9 So.3d 1251 (Fla. 3d DCA 2009); Rodriguez v. State, 958 So.2d 469 (Fla. 2d DCA 2007). Here there were none of these observations, and while there is no mandatory requirement that the officers smell marijuana, the state has not cited to us cases with similar facts to these where the search warrant has been upheld.

As Judge Ehrlich notes, the questions she asks in her opinion are not requirements, and no issuing magistrate should deny a search warrant for a marijuana grow house simply because it doesn’t answer each question pointed out in the opinion. The majority analysis does provide a useful example, however, of the type of thought process an issuing magistrate should engage in to determine whether the affidavit is sufficient, where the facts on which it relies are so meager as they are in this particular case.


text:
    STATE of Florida, Appellant, v. Edward Darrell TRAYLOR and Perry Michael Traylor, Appellees.
    No. 5D10-1301.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.
    Bradley S. Sherman of Law Office of Sherman & Souto, Orange City, for Appel-lee.
   PER CURIAM.

This is an appeal by the State of Florida (“State”) from an order quashing counts one through eight and count twelve of the third amended information filed against Appellees, Edward Traylor and Perry Traylor (collectively “Appellees”), in a prosecution brought by the statewide prosecutor. We affirm in part, reverse in part.

Appellees were indicted in 2008 in connection with a “downpayment assistance” program operated by Individual Freedom Ministries Church (“IFMC”). Appellees either owned or were associated with IFMC. IFMC’s program is alleged to have tricked various lenders into making loans on a number of residential properties located in central Florida, by making the lenders believe buyers had money for a downpayment, when in fact they did not. The “downpayment” supplied by IFMC was added to the purchase price of the various properties, and the total was then represented to the lender to be the purchase price, but at closing the downpayment was distributed back to an IFMC entity by the seller, along with a processing fee. The residential properties involved in the charges were purchased between February 2006 and October 2007.

The State’s second amended information, filed on August 5, 2009, charged Ap-pellees with numerous crimes, including racketeering, conspiracy to commit racketeering, nine counts of grand theft, and nine counts of defrauding a financial institution. The racketeering and conspiracy charges were based on nineteen separate instances of grand theft pertaining to mortgage fraud, i.e., involving properties located at nineteen separate addresses. The charges of grand theft and defrauding a financial institution, based on a false statement in violation of section 655.0322(5), Florida Statutes (2005), stemmed from mortgages obtained for nine of the properties.

Following a jury trial, the lower court granted a judgment of acquittal on the charges of racketeering, conspiracy to commit racketeering, and grand theft. Nine counts of defrauding a financial institution (counts twelve through twenty), based on section 655.0322(5), were left pending. The trial court eventually declared a mistrial on these counts after the jury deadlocked on a verdict.

Trial on the remaining counts was reset for February 16, 2010. On January 15, 2010, however, the State filed a third amended information, which charged Ap-pellees with one count of aggravated white-collar crime, in violation of section 775.0844, Florida Statutes (2005), a first-degree felony (count one), and eleven counts of defrauding a financial institution. A number of these offenses were linked to offenses outlined in the earlier information, as many involved the same mortgage loans which served as the basis for the charges in the second amended information. Some of the charges, however, involved mortgage loans on properties not previously included in the earlier complaint. Even more importantly, both count one and the eleven counts of defrauding a financial institution were based on alleged violations of a new statute not involved in the earlier information. These new claims involved section 655.0322(6), Florida Statutes (2005), which states:

Any person who knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution, subsidiary, or service corporation, or any other entity authorized by law to extend credit, or to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, subsidiary, service corporation, or any other entity authorized by law to extend credit, by means of false or fraudulent pretenses, representations, or promises, is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added).

Because of the new claims made by the State, Appellees filed a motion to quash counts one through eight and twelve of the third amended information. The motion asserted that counts two through eight and count twelve of the new information involved new claims which had been brought beyond the three-year statute of limitations applicable to second-degree felonies. The motion further asserted that count one had to be dismissed, as it relied on the charges involved in counts two through eight and count twelve. In response to the motion, the trial judge entered an order granting the motion in its entirety. The State has appealed the dismissal of the counts.

We find no error in the dismissal of counts two through eight and count twelve. These counts alleged new crimes and are barred by the statute of limitations. We reverse, however, the dismissal as to count one, which charged Appellees with first-degree aggravated white-collar crime, in violation of section 775.0844, Florida Statutes (2006). The trial court properly determined that the count was a “distinctly new Count not previously charged,” which was a “substantial amendment” of the previously filed information. However, the statute of limitations for a first-degree felony is four years under section 775.15(2)(a), Florida Statutes (2006). The white-collar charge was based on thirteen prior acts of defrauding a financial institution alleged to have been committed from February 1, 2006 through October 31, 2007. This makes February 1, 2010, the final cut-off date as to all predicate offenses included in the charge. The third amended information was filed on January 15, 2010, rendering the charge timely.

The fact that the individual (predicate) offenses would have been untimely if brought as independent charges does not affect the timeliness of the prosecution for aggravated white-collar crime. This is a continuing offense, based on the commission of numerous predicate acts. Because of the large number of predicate acts required to establish the offense, the Legislature obviously gave the State additional time to include prosecution for offenses which might have otherwise been untimely. The same result has been reached in the RICO context. See Cheffer v. Judge, Div. ‘S,’ 15th Judicial Cir., 614 So.2d 632, 633 (Fla. 4th DCA 1993) (holding RICO prosecution based on predicate acts of trafficking illegal drugs not barred by statute of limitations, although predicate acts were individually barred by four-year statute of limitations, because RICO prosecution was subject to five-year limitation). Because count one was filed inside the end date of the statute of limitations, the count was timely, and the trial court erred in quashing this count of the information.

AFFIRMED IN PART; REVERSED IN PART.

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.

      . A different judge handled the motion to dismiss than had presided over the initial trial.

      . The crime becomes a first-degree felony when a person obtains or attempts to obtain $50,000 or more by the commission of an aggravated white-collar crime against (a) ten or more elderly persons, as defined in section 825.101(5), (b) twenty or more persons, as defined in section 1.01, or (c) the State of Florida, any state agency, any of the state’s political subdivisions, or any agency of the state’s political subdivisions. § 775.0844(5), Fla. Stat. (2006).

      . The statute of limitations which apply are those which were in effect at the time of the incidents giving rise to the criminal charges. See Brown v. State, 674 So.2d 738, 740 n. 1 (Fla. 2d DCA 1995). Here, the criminal incidents took place from February 1, 2006, through October 31, 2007, meaning more than one statute is applicable. No changes to the statute, however, were made during the relevant time frame.


author: EVANDER, J.

text:
    WINTER PARK IMPORTS, INC. d/b/a Lexus of Orlando, Appellant, v. JM FAMILY ENTERPRISES, INC., et al., Appellees.
    No. 5D10-4404.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2011.

      Ladd H. Fassett and Phil A. D’Aniello, of Fassett, Anthony & Taylor, P.A., Orlando, and John W. Forehand of Kurkin, Forehand, Brandes, LLP, Tallahassee, for Appellant.
    Dean Bunch and C. Everett Boyd, Jr., of Nelson Mullins Riley & Scarborough LLP, Tallahassee, and Daniel F. Katz and Juli Ann Lund of Williams & Connolly, LLP, pro hac vice, Washington, D.C., for Appel-lees.
   EVANDER, J.

Winter Park Imports, Inc., d/b/a Lexus of Orlando (WPI), appeals a final order taxing costs (including interest) of $500,263.73 in favor of appellees, JM Family Enterprises, Inc., JM Auto, Inc., JM Auto II, Inc., and Southeast Toyota Distributors, LLC. We affirm, in part, and reverse, in part.

WPI initiated the subject litigation by bringing an action against appellees for damages, injunctive relief, and attorney’s fees based on alleged violations of the Florida Motor Vehicle Dealer Act, sections 320.60-320.70, Florida Statutes (2005). The trial court ultimately entered summary final judgment in favor of appellees and that decision was affirmed by this court. See Winter Park Imports, Inc. v. JM Family Enters., Inc., 24 So.3d 633 (Fla. 5th DCA 2009).

In June 2010, appellees filed a motion seeking costs in the amount of $387,436.90, pursuant to section 57.041, Florida Statutes, as well as interest that accrued on said amount subsequent to entry of the final judgment. Extensive documentation of the claimed costs was attached to the motion, including an affidavit from appel-lees’ lead counsel averring that all of the requested costs were “reasonably necessary to the successful resolution of this litigation.”

In response, WPI filed a memorandum objecting to the following costs sought by appellees:

1. Improper Deposition costs for charges which are not taxable.
2. Improper Video Deposition charges which are not taxable.
3. Improper Hearing Transcript costs for non-evidentiary hearings.
4. Improper Expert Witness costs for non-testifying experts.

WPI requested that the trial court disallow “all of the excess deposition charges, all of the [non-evidentiary] hearing transcript charges, and all of the expert witness fees.” In its memorandum, WPI further submitted that “even if taxable under the Guidelines, the [appellees] still ha[d] to establish that the costs were reasonable under the circumstances.”

A hearing was held on appellees’ motion to tax costs on December 8, 2010. At the onset of the hearing, the parties argued as to whether WPI’s objection to the requested expert witness fees was specific enough to place appellees on notice that an evi-dentiary hearing would be required. See, e.g., Lafferty v. Lqfferty, 413 So.2d 170, 170-71 (Fla. 2d DCA 1982) (upon specific objection to setting of expert witness fees without an evidentiary hearing, prevailing party will have to present testimony concerning necessity and reasonableness of fee; if no specific objection is made, trial judge has authority to set amount of expert witness costs based upon his or her experience in these matters, together with observation of witnesses’ testimony or review of record); Catalano v. Catalano, 802 So.2d 1146 (Fla. 2d DCA 2001); Powell v. Barnes, 629 So.2d 185 (Fla. 5th DCA 1993). Appellees’ counsel then made an ore tenus motion requesting a continuance should the trial court determine that an evidentiary hearing was required. The trial court apparently concluded that an evidentiary hearing was not necessary, denied the motion for continuance, and awarded appellees the entire amount of requested costs. ($326,979.96 of the costs sought was for expert witness fees.)

On a motion to tax costs, it is the movant’s burden to show that the requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the costs was taken. Landmark Winter Park, LLC v. Colman, 24 So.3d 787, 788-89 (Fla. 5th DCA 2009). The Florida Supreme Court has adopted the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (the Guidelines) to assist courts in determining the type of costs that should (or should not) be awarded to a prevailing party. See In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So.2d 612 (Fla. 2005). However, by its express terms, the Guidelines are advisory only. The taxation of costs in any particular proceeding is within the broad discretion of the court. Id. at 616; see Landmark Winter Park, 24 So.3d at 788.

On appeal, WPI argues that the trial court assessed certain hearing transcript and deposition costs that are not taxable under the Guidelines. With one exception, we reject WPI’s arguments regarding these categories of costs. We cannot say that the trial court’s decision to award the costs for transcripts of non-evidentiary hearings was an abuse of discretion, particularly where it appears that the parties referenced these transcripts at subsequent hearings held in this contentious litigation. Similarly, we cannot say that it was an abuse of discretion to award costs for expediting the preparation and delivery of deposition transcripts given the “high-stakes” nature of this litigation and the time constraints that the parties were sometimes subject to. However, with regard to the costs related to video depositions, we remand for reconsideration by the trial court. While it was within the trial court’s discretion to award the videog-raphers’ per diem/appearance fees, we cannot ascertain from the record whether ap-pellees sought costs for both a transcript of the video deponents’ testimony as well as videotapes of depositions. If appellees obtained a transcript of a videotaped deponent’s testimony, it is difficult to see why it would be reasonably necessary to also purchase the videotape prior to a summary judgment hearing.

While appellees’ lead counsel could properly testify as to the reasonableness and necessity of deposition and transcript costs, as well as the necessity of obtaining expert witnesses, he was not qualified to testify as to the reasonable value of the expert witnesses’ services. See Powell, 629 So.2d at 186 (experienced trial attorney, who was not shown to have expertise in various fields of endeavor at issue such as metallurgy, accident reconstruction, forensic economics, etc., was not qualified to testify as to reasonableness of expert witnesses’ fees; that evidence had to come from witnesses qualified in the areas concerned); see also Starita v. West Putnam Post No. 10164, 666 So.2d 278 (Fla. 5th DCA 1996).

Powell and Starita also stand for the proposition that, as a general rule, where a party seeking fees and costs has been afforded an evidentiary hearing, it is not entitled to a second bite at the apple to prove its claim. In the instant case, appel-lees vigorously argued (and the trial court apparently agreed) that WPI’s objection to the request for expert fees was not specific enough to put appellees on notice that they would be required to present evidence as to the reasonable value of the expert witnesses’ services. While WPI’s objection could certainly have been set forth with greater clarity, we conclude that it was specific enough to preserve its objection both as to entitlement and amount of expert witness costs sought by appellees. However, our review of the transcript also leads us to conclude that had the trial court deemed WPI’s objection sufficient, it may well have granted appellees’ request for continuance. Accordingly, we believe it appropriate to remand the issue regarding appellees’ request for expert witness fees for an evidentiary hearing.

WPI also argues that because there was no trial below, any expert witness fee awarded by the trial court must be limited to the time an expert expended in the actual giving of his or her deposition testimony. We reject this argument.

The substantive right to taxation of expert witness fees as costs was created in section 92.281(2), Florida Statutes. Massey v. David, 979 So.2d 981, 941 (Fla.2008). That statute authorizes a witness fee for an expert or skilled witness who shall have testified in any cause. The Guidelines recommend an award of “a reasonable fee for deposition and/or trial testimony.” Similarly, Florida Rule of Civil Procedure 1.390(c) recognizes that expert or skilled witnesses may be awarded a reasonable fee for deposition testimony, which also may be assessed as “costs.” Coastal Petroleum Co. v. Mobil Oil Corp., 583 So.2d 1022, 1025 (Fla.1991). This rule imposes no requirement that the expert must actually testify at trial or that the deposition must actually be used at trial, only that the witness be deposed. Id.

Here, it is undisputed that the expert witnesses for which appellees sought an award of costs had given deposition testimony. Neither the Guidelines nor rule 1.390(c) specifies the factors that a trial court may consider when determining a reasonable fee for deposition or trial testimony. However, given the broad discretion granted to the trial court, we conclude that a court is not precluded from considering the time an expert expended in preparing for deposition, including the time reasonably and necessarily spent when conferring with counsel and in formulating his or her expert opinion through examination, investigation, testing, and/or research. See, e.g., Brascom v. Hillsborough Cnty. Sheriffs Office/Commercial Risk Mgmt., Inc., 65 So.3d 619 (Fla. 1st DCA 2011) (Guidelines did not prohibit award for expert’s time expended in pretrial conference with counsel; it was within trial court’s discretion to grant such award). However, on remand, we caution the trial court that the supreme court has specifically stated that a trial court should exercise its discretion “in a manner that is consistent with the policy of reducing overall costs of litigation and of keeping such costs as low as justice will permit.” In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So.2d at 614, 616. Furthermore, the trial court must determine that any expert witness fees incurred were reasonably necessary to defend the instant action. Landmark Winter Park, 24 So.3d at 788-89.

AFFIRMED, in part; REVERSED, in part; REMANDED.

TORPY and JACOBUS, JJ., concur.

      . There was no objection below to appellees’ request for interest.

      . Here, counsel’s testimony was presented, without objection, through his affidavit.


author: SCHWARTZ, Senior Judge.

text:
    A.H. the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, et al., Appellees.
    No. 3D10-2760.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Kevin Coyle Colbert, Miami, for appellant.

      Karla Perkins, Miami, for appellee Department of Children & Families; Hillary S. Kambour, for appellee Guardian Ad Li-tem Program.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

A.H., the mother of R.L, D.L., and A.L., appeals from a final judgment terminating her parental rights to those children. We reverse the judgment and remand for further proceedings on the ground that there was no statutory basis to justify this drastic remedy as to any of the children. Specifically, the record is devoid of any, let alone the clear and convincing evidence required to support the termination under section 39.806(l)(c) or 39.806(l)(f), Florida Statutes (2010), as DCF claimed and the trial court found.

The basis of the petition to terminate the mother’s rights was the alleged insufficiency of her attempts to keep the children’s mentally ill and highly abusive father from her home and away from the children. There is no allegation that the mother has otherwise harmed her children or has not provided for their care. With regard to section 39.806(l)(c), the evidence does not remotely establish, as required, that “continued interaction with the [mother] threatens the life, safety, or health of the childfren], and ... that this threat cannot be remedied by the provision of services.” J.C. v. Dep’t of Children & Family Servs., 26 So.3d 665, 665 (Fla. 3d DCA 2010) (quoting In re S.F., 22 So.3d 650, 653 (Fla. 2d DCA 2009)). Here, the evidence showed that, albeit without always following her case safety plan in every respect or achieving success in doing so, the mother conscientiously endeavored — in fact, as an examining psychologist testified, did everything “within her powers” — to protect the children from their offending father. Specifically, those efforts included calling the police or making a report at the station when the father violated the restraining order she had secured against him, leaving with the children to go to another location or a friend’s house when the father showed up unwanted at her home, and making plans to relocate with the children to a gated apartment complex and even out of the country to her native Jamaica. The record also shows that the father was no longer a threat to the children: his parental rights have been terminated and he is subject to a no-contact order; he is incarcerated under felony charges; he had been adjudged incompetent to stand trial; and he is likely to be deported. In sum, this evidence is insufficient to establish that continued interaction with the mother threatens the children’s life, safety, or health; indeed, the possibility of interaction with the father — the basis of the lower court’s ruling — has been alleviated. See C.R. v. Dep’t of Children & Families, 45 So.3d 988 (Fla. 3d DCA 2010) (reversing dependency adjudication, holding that there was no evidence to support the trial court’s finding that the father poses a risk of present or future harm to children caused by the parents’ domestic violence where parents had separated and a permanent injunction precluded contact); M.M. v. Dep’t of Children & Families, 946 So.2d 1287 (Fla. 4th DCA 2007) (reversing dependency adjudication, which requires significantly less stringent showing, as unsupported by the record for mother’s failure to take sufficient action to protect children from mentally ill father); I.R. v. Dep’t of Children & Family Servs., 904 So.2d 583, 586 (Fla. 3d DCA 2005) (reversing termination of mother’s parental rights finding the record inadequate to show that “the parent suffers from a condition that makes probable the prospect of future abuse or neglect of a child and that the condition was one which was likely to continue”). Cf. T.O. v. Dep’t of Children & Families, 21 So.3d 173 (Fla. 4th DCA 2009) (affirming termination of mother’s parental rights where record shows that mother refused to end her relationship with the father despite his abuse of the child and termination of both parent’s rights based on the continued threat of domestic violence in the home).

As to termination under section 39.806(l)(f), the record, again, does not support the trial court’s finding that the mother engaged in conduct that is “deplorable, flagrant, or outrageous by a normal standard of conduct” as the statute provides is required to justify termination. At oral argument, the appellees apparently conceded the lack of evidence as to this ground, and when asked to, could not— because there is none — cite any case in which a parent’s actions or inactions in attempting to protect the children from the offending parent were comparable to those of A.H., and were held to constitute the requisite egregious conduct. It simply cannot be said that she minimized the situation so as to constitute “deplorable, flagrant, or outrageous” conduct in light of the previously described efforts to protect the children. Cf. In re E.R., 49 So.3d 846, 858 (Fla. 2d DCA 2010) (holding that DCF proved that mother engaged in egregious conduct when “[e]ven if she did not witness the abuse [which resulted in the death of the child], she was present in the house and surely knew what was occurring [and][n]evertheless, she chose to conceal her knowledge of the incident and to continue her relationship with the father [and][t]he evidence also suggests that she will knowingly fail to take steps to protect [the other children] from abuse”), cause dismissed, 61 So.3d 411 (Fla.2011), and review denied, 60 So.3d 1054 (Fla.2011); P.I. v. Dep’t of Children & Families, 14 So.3d 1173, 1174 (Fla. 3d DCA 2009) (affirming termination of mother’s parental rights for egregious conduct and abuse where evidence supported trial court’s finding that “there is no way the mother can safeguard the children from [the stepfather]”); A.B. v. Fla. Dep’t of Children & Family Servs., 901 So.2d 324 (Fla. 3d DCA 2005) (affirming dependency adjudication for failure to protect child where mother did not seek assistance after child reported abuse incidents to her).

Reversed and remanded.

      . Because the record does not show a continued threat to the children, we do not address whether provision of services would be futile. We do note, however, that in recommending that the court deny the termination petition, Dr. Archer, who conducted a psychological evaluation of the mother, opined that she was not in need of services.

      . He had never been jailed for any significant period until he committed the offenses upon and in the presence of the children which touched off the present petition. Ironically enough, therefore, the conduct which caused this proceeding simultaneously made it legally wrong and practically unnecessary.


text:
    R.M.C., Grandmother, Petitioner, v. D.C., Father, Respondent.
    No. 1D11-5091.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2012.

      Joseph L. Mannikko, and E. Barbara Baris, of Mannikko & Baris, Macclenny, for Petitioners.

      No appearance for Respondents.
   PER CURIAM.

This petition seeks to disqualify a trial judge from presiding over seventeen cases based on events that occurred in one case. We deny the petition.

Petitioners seek disqualification based on events which occurred in an adoption proceeding which attracted media attention. Petitioner R.M.C. filed a motion to disqualify in the adoption case based on comments the trial judge made concerning whether R.M.C. or her attorneys had contacted the media. While the motion to disqualify was pending, the trial judge issued three orders in the adoption case. Thereafter, the trial judge issued an order of recusal in the adoption case.

The attorneys for R.M.C. filed motions to disqualify the trial judge in every other pending case where they were counsel of record. The motions asserted that the trial judge had shown bias and prejudice against the attorneys in the adoption case which presented a legal basis for disqualification in all other cases. The trial judge denied the motions as legally insufficient under rule 2.330, Florida Rules of Judicial Administration, and cited Cascone v. Foster, 774 So.2d 773, 774 (Fla. 1st DCA 2000) (noting that “a lawyer’s request for a general disqualification will not be granted”).

This petition for writ of prohibition seeks to quash the three orders that were issued in the adoption case after the motion to disqualify was filed and to disqualify the trial judge from presiding in sixteen other pending cases where the attorneys are counsel of record. Petitioners assert that the trial judge’s prejudice against the attorneys as expressed in the adoption case extends to all of the cases in which the attorneys represent clients before the trial judge. Petitioners state that they have not made a blanket recusal request, but instead, have filed individual motions for recusal in each case. Petitioners argue that the trial judge’s reliance on Cascone is misplaced because the motion to recuse in Cascone was filed with the clerk of the court, but not in a particular case and that prejudice toward client’s counsel is prejudice to the client. Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981).

In determining whether a motion to disqualify is legally sufficient, the appellate court reviews the motion’s allegations under a de novo standard. See Peterson v. Asklipious, 833 So.2d 262, 263 (Fla. 4th DCA 2002). Rule 2.330 requires a judge to enter an order granting disqualification if the motion to disqualify is “legally sufficient.” A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990). “A verified motion for disqualification must contain an actual factual foundation for the alleged fear of prejudice.” Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986). A mere “subjective fear[ ]” of bias will not be legally sufficient; rather, the fear must be objectively reasonable. Id. at 242. The burden is on the party seeking disqualification to show a well-founded fear of not receiving a fair trial. See Adkins v. Winkler, 592 So.2d 357 (Fla. 1st DCA 1992).

Because the trial judge has disqualified herself from the adoption case, the request for prohibition relief is denied as to the adoption case. “Prohibition is a preventative, rather than a corrective remedy; it acts only to prevent the commission of an act, and is not an appropriate remedy to revoke an order already issued.” Morse v. Moxley, 691 So.2d 504, 506 (Fla. 5th DCA 1997) (citing English v. McCrary, 348 So.2d 293 (Fla.1977)). Prohibition will not lie to revoke the orders that the trial judge entered in the adoption case after the motion to disqualify was filed.

As to the' sixteen other cases where the attorneys are counsel of record, courts look with disfavor on a blanket request for recusal. Ginsberg v. Holt, 86 So.2d 650 (Fla.1956). In Ginsberg, a lawyer filed a suit for an injunction to prevent a trial judge from considering any of his cases. The Florida Supreme Court affirmed a dismissal of the complaint, stating:

There is no provision in the statutes or the decisions for a blanket decree restraining a particular judge from hearing all cases in which a particular attorney may appear in his professional capacity as an officer of the court and we unreservedly decline to introduce such a novel and revolutionary procedure.

Id. at 651-2. The Florida Supreme Court restated that principle in Livingston v. State, 441 So.2d 1083 (Fla.1983), and emphasized the point with the categorical warning that “a lawyer’s request for a general disqualification will not be granted.” Id. at 1085. Although petitioners’ attorneys deny filing a blanket motion for recusal, that is in effect what has been done by filing a motion to recuse in every single pending case in which the trial judge is presiding and the attorneys are counsel of record. The trial judge’s comments in the adoption case did not require disqualification in every other pending case in which the attorneys appear as counsel of record.

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    Michael LEIF, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1954.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Michael Leif, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark K. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The State concedes that the record does not conclusively refute petitioner’s legally sufficient postconviction claims and that reversal is required. Fla. R.Crim. P. 3.850(d). We reverse and remand for further proceedings and an evidentiary hearing if necessary.

MAY, C.J., CIKLIN and CONNER, JJ., concur.


text:
    Richard S. ROSS, Petitioner, v. Sheri Lynn ROSS, Respondent.
    No. 4D11-2707.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Richard S. Ross, Fort Lauderdale, pro se.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

This case arises in a most peculiar posture. Richard S. Ross has filed a petition for writ of prohibition, seeking to bar Bro-ward County Circuit Court Judge Alfred Horowitz (“the trial judge”) from continuing to preside over post-dissolution proceedings after the judge was disqualified. We grant the petition.

By way of background, in a recent appeal between the same parties, Ross v. Ross, 61 So.3d 479 (Fla. 4th DCA 2011), this court reversed an order granting the former wife’s motion to compel the sale of the former husband’s residence to satisfy arrearages. We remanded the ease with instructions for the trial judge to enter a new order after giving the former husband an opportunity either to submit his own proposed order or to object to the former wife’s proposed order.

While the appeal was pending, the former husband filed a motion to disqualify the trial judge. By the time this court’s mandate issued, the trial judge had granted the motion to disqualify. Notwithstanding the entry of that order, the trial judge conducted a teleconference with the parties, and directed the former husband to submit to the court the former husband’s objections or a proposed order. During the telephone conference, the former husband objected to the trial judge taking any further action in the case, arguing that under Florida Rule of Judicial Administration 2.380 (“disqualification rule”), a trial judge is prohibited from taking any action in a case once disqualified. This petition follows.

In response to the petition, the former wife argues that the exception to the disqualification rule announced in Fischer v. Knuck, 497 So.2d 240 (Fla.1986), applies to the facts of this case. We disagree based on the holding in Plaza v. Plaza, 21 So.3d 181 (Fla. 3d DCA 2009).

Generally, a disqualified judge is barred from further participation in the case. See, e.g., Goolsby v. State, 914 So.2d 494 (Fla. 5th DCA 2005); Sherrod v. Berg, 865 So.2d 689 (Fla. 5th DCA 2004); Collado v. Collado, 858 So.2d 1255 (Fla. 5th DCA 2003). Moreover, an order entered by a disqualified trial judge is void. Jenkins v. Motorola, Inc., 911 So.2d 196, 197 (Fla. 3d DCA 2005) (citing Stimpson Computing Scale Co. v. Knuck, 508 So.2d 482 (Fla. 3d DCA 1987)).

The exception to the disqualification rule announced in Fischer provides “[w]hen a judge has heard the testimony and arguments and rendered an oral ruling in a proceeding, the judge retains the authority to perform the ministerial act of reducing that ruling to writing.” Fischer, 497 So.2d at 243 (citations omitted). “However, any substantive change in the trial judge’s ruling would not be a ministerial act.” Id.

In Plaza, under circumstances similar to this case, the Third District Court held:

The exception to the disqualification rule cannot be applied in this case because the trial judge directed the mother’s attorney to prepare and submit a proposed order reflecting the trial judge’s pronouncements after the hearing, the parties dispute what occurred at the hearing, the trial judge made changes to the proposed order, and there is no transcript to determine whether the order signed by the judge comports with the factual findings and oral pronouncements made by the judge at the hearing.

21 So.3d at 183.

Similarly, in order to carry out this court’s mandate in the appeal, the trial judge would have to exercise his discretion to consider the former husband’s objections to the former wife’s proposed order, the former husband’s proposed order, or to draft his own order — any of which would constitute more than performing a ministerial task. Even if the trial judge had announced findings and conclusions at the hearing on the former wife’s motion, enough time has passed, without a court reporter or transcript, to require the trial judge to exercise judicial discretion in issuing a written order. See Berry v. Berry, 765 So.2d 855, 857-58 (Fla. 5th DCA 2000) (holding the narrow exception to the disqualification rule was inapplicable where trial judge had to exercise his discretion).

Finally, the successor judge will be required to conduct a new hearing. Beattie v. Beattie, 536 So.2d 1078, 1079 (Fla. 4th DCA 1988).

Petition Granted; Recused Judge Is Directed To Proceed No Further in the Matter.

POLEN, TAYLOR and DAMOORGIAN, JJ., concur.

      . We refer to Richard Ross as the "former husband” and Sheri Lynn Ross as the "former wife.”

      . Rule 2.330(f) provides in pertinent part: “If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.”


text:
    Taran Ricky LENHARDT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0152.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

VAN NORTWICK, THOMAS, and ROWE, JJ., concur.


text:
    James PENN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6637.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2012.
    James Penn, 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.

PADOVANO, ROBERTS, and SWANSON, JJ., concur.


text:
    JAMES McGEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6704.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2012.
    James McGee, 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.

PADOVANO, ROBERTS, and SWANSON, JJ„ concur.


text:
    Desi A. BARFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6710.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2012.
    Desi A. Barfield, 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.

PADOVANO, ROBERTS, and SWANSON, JJ., concur.


text:
    James McGEE, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-6918.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.
    James McGee, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011) (holding that section 893.13, Florida Statutes, is constitutional).

PADOVANO, THOMAS, and SWANSON, JJ., concur.


text:
    Jason Wayne SPRINGER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6785.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.
    Jason Wayne Springer, 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., CLARK and MARSTILLER, JJ., concur.


text:
    Chris JONES, Property Appraiser for Escambia County, Florida and Janet Holley, Tax Collector for Escambia County, Florida, Appellants, v. PORTOFINO TOWER ONE HOMEOWNERS ASSOCIATION at Pensacola Beach, Inc., Appellee.
    No. 1D11-536.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2012.

      Elliott Messer and Thomas M. Findley of Messer, Caparello & Self, P.A., Tallahassee, for Appellants.
    Edward P. Fleming and R. Todd Harris of McDonald Fleming Moorhead, Pensacola, for Appellee.
   PER CURIAM.

The appellants, Chris Jones, Property Appraiser for Escambia County, Florida, and Janet Holley, Tax Collector for Es-cambia County, Florida, appeal the trial court’s order vacating the property tax assessments for the Portofino Condominiums for years 2004-09 and establishing the assessments based upon record evidence. For the reasons set forth below, we affirm.

The real property at issue was originally conveyed to Escambia. County, Florida, by the United States of America during the 1940s. The conveyance was conditioned upon the County retaining the property, and not conveying or otherwise disposing of the property. However, the County was expressly permitted to lease the whole, part, or parts of the land at the County’s discretion. On July 1, 1997, a portion of the property was leased by the Santa Rosa Island Authority, an agency of Escambia County, to Gary Work as Trustee of the Pensacola Beach Land Trust, and the property was eventually subleased and developed.

Because the Portofino Condominiums were situated on government-owned land, the Escambia County Tax Collector treated as exempt from ad valorem taxation both the land associated with the Portofino Condominiums and the improvements themselves. However, beginning in 2004, following the decision from this court in Ward v. Brown, 919 So.2d 462 (Fla. 1st DCA 2005), providing authority for the Escambia County Property Appraiser to assess improvements on Santa Rosa Island under an equitable ownership theory, the appellants assessed ad valorem taxes against the improvements for the Portofi-no Condominiums. The Portofino Tower One Homeowners Association at Pensacola Beach, Inc. (“Portofino”), as the authorized representative of the 765 condominium units located in the five towers of the Portofino Condominiums, challenged the assessments, disputing the amount of the assessments, as well as the appellants’ right to assess improvements located on government-owned property.

Portofino moved to bifurcate the trial into the following legal issues: (I) whether the appellants had the authority to assess ad valorem taxes for the Portofino Condominiums; and (II) if the appellants did have such authority, whether the assessment of the Portofino Condominiums exceeded just value. During the first phase of the tidal, the trial 'court determined that the appellants were legally authorized to assess ad valorem taxes on the Portofino Condominiums. This decision was per cu-riam affirmed by this court in Portofino Tower One Homeowners Ass’n at Pensacola Beach, Inc., v. Jones, 987 So.2d 83 (Fla. 1st DCA 2008).

The second phase of the bifurcated trial is the subject of this appeal. After a four-day bench trial, the trial court determined that the property appraiser’s assessments exceeded just value; however, the trial court concluded that the record provided competent, substantial evidence to permit the court to establish the assessments, and therefore, the court established the assessments as it is authorized to do by section 194.301, Florida Statutes.

The appellants raise three issues on appeal: (I) whether the trial court erred in finding that the land underlying Portofino was not subject to ad valorem taxation contrary to subsequent decisions from this court as well as chapter 718, Florida Statutes; (II) whether the trial court erred in finding that the property appraiser failed to properly consider the criteria under section 193.011, Florida Statutes; and (III) whether the trial court erred in establishing the assessment of the Portofino Condominiums pursuant to section 194.301, Florida Statutes. We affirm with respect to the second and third issues because the trial court properly determined that the property appraiser’s assessments exceeded just value and because competent, substantial evidence in the record supports the trial court’s establishment of the assessments. See § 194.301, Fla. Stat. (2004); GTE Florida, Inc. v. Todora, 854 So.2d 731, 736 (Fla. 2d DCA 2003).

With respect to the first issue raised by the appellants, we write only to address their argument that, in accordance with this court’s recent decision in Accardo v. Brown, 63 So.3d 798 (Fla. 1st DCA 2011), the appellants’ assessment of ad va-lorem taxes on the Portofino improvements and land was proper. The appellants are correct that in Accardo this court held that leaseholds on Navarre Beach in Santa Rosa County were subject to ad valorem taxation because the leaseholders were the equitable owners of both the improvements and the underlying land. However, the holding in Accardo is inapplicable under the facts of this case. First, the record on appeal clearly demonstrates that the Escambia County Property Appraiser did not seek to assess ad valorem taxes for the land underlying the Portofino Condominiums during the years in question; thus, they may not do so now. See State, Dep’t of Revenue v. Sohn, 654 So.2d 249, 251 (Fla. 1st DCA 1995) (“It is clear that mistakes in judgment cannot be corrected after the tax roles [sic] are certified.”). Second, unlike Accardo — where the Santa Rosa Property Appraiser expressly sought to assess ad valorem taxes against the land by arguing that the leaseholders were the equitable owners of not only the improvements, but also the land— the Escambia County Property Appraiser never advanced at trial an equitable ownership argument with regard to the land underlying the Portofino Condominiums. They may not do so now for the first time on appeal. We, therefore, affirm the judgment of the trial court.

AFFIRMED.

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

      . Navarre Beach is located on the other side of Santa Rosa Island from the Portofino Condominiums. It was originally conveyed to Escambia County by the United States by a Deed of Conveyance and was later leased by Escambia County to Santa Rosa County. Accardo, 63 So.3d at 799.

      . A document from the Tax Collector's Office plainly demonstrates that the land was treated as exempt as government-owned property during the contested years. This is further supported by ample record testimony from the Property Appraiser’s Office that they did not treat the land as taxable during the years at issue.


text:
    Antonio ATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6870.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2012.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Antonio Atkins appeals the order revoking his probation and the resulting sentence. We affirm the trial court’s finding that Mr. Atkins violated his probation. See Yerrick v. State, 979 So.2d 1228, 1229 (Fla. 4th DCA 2008); Headley v. State, 770 So.2d 1244 (Fla. 1st DCA 2000). We reverse the sentence and remand for resen-tencing before a different judge. See Carswell v. State, 75 So.3d 419 (Fla. 1st DCA 2011). Because the order revoking probation incorrectly states that Mr. Atkins admitted violating probation, we direct that this scrivener’s error be corrected on remand.

Affirmed in part, reversed in part, and remanded.

BENTON, C.J., DAVIS, and MARSTILLER, JJ., concur.


text:
    BLUEPRINT 2000 INTERGOVERNMENTAL AGENCY, a Leon County-City of Tallahassee Intergovernmental Agency, Appellant, v. The HEIRS AND BENEFICIARIES OF the ESTATE OF PRINCE GRIFFIN and All Other Unknown Parties Claiming By, Through, Under and Against the Above-Named Respondents, Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Unknown Tenants, Devisees, Grantees, Creditors, Lienors or Other Claimants, Appellees.
    No. 1D11-1119.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2012.
    Debra Wiggins Sehiro, Blueprint 2000 Legal Counsel, George Reynolds, IV, Assistant Blueprint Attorney, Blueprint 2000 Intergovernmental Agency, Tallahassee, for Appellant.
    Murray M. Wadsworth, Jr., of Gardner, Bist, Wiener, Wadsworth, & Bowden, P.A., Tallahassee; Gwendolyn J. Spencer of The Spencer Law Firm, P.L.C., Tallahassee, for Appellees Ethel Lee Allen, Junius Barber, George Barber, Willa M. Barber, and Ethel Thomas.
    Harold M. Knowles, Roosevelt Randolph, and Dawn Pompey Whitehurst of Knowles & Randolph, P.A., Tallahasse, for Appellees Dunsen Watson and Maggie Watson.
    Andrea V. Nelson and Walter Kelly of Nelson Law Firm, PLC, Tallahassee, for Appellees Maebell Watson Knight, Luella Watson Franklin, Gary Watson, Lorenzo L. Sampson, Sammy L. Watson, Bruce L. Watson, Norris L. Watson, Thomas Watson, Nathaniel Watson, and Willie J.
   ON MOTION FOR REHEARING OF ORDER DENYING APPELLATE ATTORNEY’S FEES AND COSTS

PER CURIAM.

In this eminent domain case, Appellees filed motions seeking an award of appellate attorney’s fees and costs. We denied the motions. On consideration of Appellees’ respective motions for rehearing, we now grant the motions and remand this matter for the trial court to determine the appropriate amount of the award. See Seminole County v. Boyle Inv. Co., 724 So.2d 645, 646 (Fla. 5th DCA 1999) (holding defendant landowner entitled to appellate attorney’s fees and costs where condemning authority appealed fee award and defendant prevailed); Solid Waste Authority of Palm Beach County v. Parker, 622 So.2d 1014 (Fla. 4th DCA 1993) (holding that section 72.131(2), Florida Statutes, provides for an award of appellate attorney’s fees where the issue was the reasonableness of the fee awarded by the trial court).

Appellees’ motions for attorney’s fees are GRANTED, and this cause is REMANDED with instructions consistent with this opinion.

DAVIS, VAN NORTWICK, and THOMAS, JJ., concur.


author: GROSS, J.

text:
    George BIANCHINI, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1986.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We reverse the restitution award entered in this case because there was no competent evidence to support the extent of the award.

After being charged with a felony, appellant entered a negotiated plea to the misdemeanor offense of contracting without a license and agreed to pay restitution in an amount to be later determined at a restitution hearing.

The victims in this case were an elderly couple. Their son, who had a du-rabie power of attorney to handle his parents’ checking accounts, was the only witness at the restitution hearing. The son testified, properly, that his parents paid appellant $20,000 for a roofing job and $4,000 for other repairs. As to the deficiencies in the roof, however, the son testified, over appellant’s hearsay objection, on what roof inspectors told him was wrong with the roof. The trial court made a restitution award of $23,975.

A restitution award “must be based on competent evidence.” Glaubius v. State, 688 So.2d 913, 916 (Fla.1997). “ ‘Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.’ ” McKown v. State, 46 So.3d 174, 175 (Fla. 4th DCA 2010) (quoting Bigelow v. State, 997 So.2d 1249, 1250 (Fla. 5th DCA 2009)); see also T.J.N. v. State, 977 So.2d 770, 773-74 (Fla. 2d DCA 2008) (reversing a restitution award, in part, because the state’s witness, an insurance adjustor, “bas[ed] his testimony on an estimate he had received from an auto body shop”; thus, “[n]o competent evidence was presented concerning the amount of the damages”).

Here, the state introduced only hearsay evidence at the restitution hearing as to how the roof was deficient and what it would take to remedy the deficiency; appellant objected to this hearsay. There was, therefore, no competent evidence concerning the amount of damages actually suffered by the victims, as opposed to the amount they paid appellant. We reverse and remand for a new restitution hearing concerning the amount of restitution.

We reject appellant’s argument that restitution was inappropriate because any loss or damage was not “causally connected” to the offense of contracting without a license. Restitution is authorized for “[djamage or loss caused directly or indirectly by the defendant’s offense” and for “[djamage or loss related to the defendant’s criminal episode.” § 775.089(l)(a)1.2., Fla. Stat. (2005). One purpose of the statute criminalizing unlicensed contracting is to ensure that certain contractors meet minimum levels of competence. Deficient workmanship on the contracted job is “related” to the offense of contracting without a license.

Reversed.

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

      . See § 489.127(l)(f), (2)(a), Fla. Stat. (2005).

      . See §§ 489.101, 489.105(8), 489.105(10), 489.113(1), Fla. Stat. (2011); Alles v. Dep't of Prof'l Reg., Constr. Indus. Lic. Bd., 423 So.2d 624, 627 (Fla. 5th DCA 1982).


text:
    David E. NEITLICH and Carole C. Neitlich, Appellants, v. THIRTY-THREE SIXTY CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D10-3052.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Bonnie S. Satterfield of Bonnie S. Sat-terfield, P.A., Coral Springs, for appellants.

      Daniel S. Rosenbaum and Tatiana B. Yaques of Rosenbaum Mollengarden Jans-sen & Siracusa, PLLC, West Palm Beach, for appellee.
   PER CURIAM.

The Neitlichs appeal the order awarding the condominium association attorney’s fees as the prevailing party. We affirm in all respects but one. We agree with the Neitlichs that it was error to award fees to attorney Perez-Martinez. Perez-Martinez failed to testify at the hearing and is therefore precluded from an award of attorney’s fees. See Quality Holdings of Fla., Inc. v. Selective Invs., IV, LLC, 25 So.3d 34 (Fla. 4th DCA 2009). On remand, the trial court shall issue an amended order which does not include hours billed by Perez-Martinez.

Reversed and remanded.

MAY, C.J., HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Tyrice NEALS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3142.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Tyrice Neals, Madison, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Tyrice Neals seeks review of an order denying his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

At issue is the minimum mandatory sentence resulting from Neals’ possession of a firearm. In its response to this Court’s show cause order, the State acknowledges that it is unclear on the record before this Court whether Neals stipulated to the fact that he had actual possession of a firearm, a condition precedent to his minimum mandatory sentence. See, e.g., Blanc v. State, 899 So.2d 455 (Fla. 4th DCA 2005). Consequently, we remand this matter to the trial court for attachment of specific records to refute the claim, or for resen-tencing if no such documents exist.

Reversed and remanded for further proceedings consistent with this opinion.

GROSS, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    Louis V. MUSCARI, Appellant, v. WELLS FARGO BANK, N.A., as Trustee for Option One Mortgage Loan Trust 2007-1 Assets Backed Certificates, Appellee.
    No. 4D10-3890.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Louis C. Arslanian, Hollywood, for appellant.
    James H. Wyman of Hinshaw & Culbertson, LLP, Fort Lauderdale, for appel-lee.
   PER CURIAM.

Affirmed. See Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010).

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


text:
    ST. JOSEPH’S HOSPITAL, INC., d/b/a St. Joseph’s Hospital, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, and HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point, Appellees.
    No. 1D11-6512.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Karen A. Putnal and Robert A. Weiss of Parker Hudson Rainer & Dobbs, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Lynette Norr and Charlyne M. Patterson, Assistant Attorneys General, Tallahassee, for Appellee Florida Department of Health; Stephen A. Ecenia of Rutledge, Ecenia & Purnell, P.A., Tallahassee, for Appellee HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 20, 2011, the Court has determined that the order on appeal does not constitute an appealable order. Furthermore, the Court declines to grant the appellant’s request that the matter be reviewed pursuant to section 120.68(1), Florida Statutes. See Norman v. Ambler, 46 So.3d 178 (Fla. 1st DCA 2010); see also School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). Accordingly, the appeal is dismissed.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a The Tampa General Hospital, and Bayfront Medical Center, Inc., Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH, and HCA Health Services of Florida, Inc., d/b/a Blake Medical Center, Appellees.
    No. 1D11-6505.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.

      Jeffrey L. Frehn and Angela D. Miles of Radey, Thomas, Yon and Clark, Tallahassee, for Appellants.
    Pamela Jo Bondi, Attorney General, and Charlyne M. Patterson, Assistant Attorney General, Tallahassee, for Appellee Florida Department of Health.
   PER CURIAM.

Upon consideration of the appellants’ response to the Court’s order of December 9, 2011, the Court has determined that the order on appeal does not constitute an appealable order. Furthermore, the Court declines to grant the appellant’s request that the matter be reviewed pursuant to section 120.68(1), Florida Statutes. See Norman v. Ambler, 46 So.3d 178 (Fla. 1st DCA 2010); see also School Bd. of Leon County v. Mitchell, 846 So.2d 562 (Fla. 1st DCA 1977). Accordingly, the appeal is dismissed.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a The Tampa General Hospital, and Bayfront Medical Center, Inc., Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH, and HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point, Appellees.
    No. 1D11-6502.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Jeffrey L. Frehn and Angela D. Miles of Radey, Thomas, Yon, & Clark, Tallahassee, for Appellants.
    Pamela Jo Bondi, Attorney General, and Charlyne M. Patterson, Assistant Attorney General, Tallahassee, for Appellee Florida Department of Health.
   PER CURIAM.

Upon consideration of the appellants’ response to the Court’s order of December 9, 2011, the Court has determined that the order on appeal does not constitute an appealable order. Furthermore, the Court declines to grant the appellant’s request that the matter be reviewed pursuant to section 120.68(1), Florida Statutes. See Norman v. Ambler, 46 So.3d 178 (Fla. 1st DCA 2010); see also School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). Accordingly, the appeal is dismissed.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    SHANDS JACKSONVILLE MEDICAL CENTER, INC., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, and Orange Park Medical Center, Inc., Appellees.
    No. 1D11-6484.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.

      Seann M. Frazier and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlyne M. Patterson, Assistant Attorney General, Tallahassee, for Appellee Florida Department of Health.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 9, 2011, the Court has determined that the order on appeal does not constitute an appealable order. Furthermore, the Court declines to grant the appellant’s request that the matter be reviewed pursuant to Florida Rule of Appellate Procedure 9.100(e)(8). See Norman v. Ambler, 46 So.3d 178 (Fla. 1st DCA 2010); see also School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). Accordingly, the appeal is dismissed.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    Johnny FOUNTAIN, Jr., Appellant, v. PMI EMPLOYEE LEASING and Comprehensive Insurance Solutions, Inc., Appellees.
    No. 1D11-6037.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Bill McCabe, Longwood, for Appellant.
    Allison H. Hauser, Jacksonville, for Ap-pellees.
   PER CURIAM.

Upon review of Appellant’s timely response to this court’s November 15, 2011, order to show cause, we DISMISS this appeal without prejudice to the right to seek review upon entry of a final order. See Mintz v. Broward Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001) (holding order merely granting employer/earrier’s motion to dismiss is not an appealable final order); see also, e.g., Skoran v. Seacoast Util. Auth., 60 So.3d 1174 (Fla. 1st DCA 2011); Boladares v. Olemshoe Corp., 28 So.3d 176 (Fla. 1st DCA 2010); Truc v. Kimmins Corp., 889 So.2d 964, 964 (Fla. 1st DCA 2004).

DISMISSED.

WETHERELL, MARSTILLER, and SWANSON, JJ., concur.


text:
    Marcus Tyrone BROADNAX, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5504.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.

      Brandon S. Morris, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on August 30, 2011, in Escambia County Circuit Court Case Number 2010-CF-002880-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

PADOVANO, ROBERTS, and SWANSON, JJ., concur.


text:
    DEPARTMENT OF REVENUE o/b/o Regina T. BOHM, Appellant, v. Martin F. KOEHLER, Appellee.
    No. 1D11-4321.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Toni C. Bernstein, Assistant Attorney General, Tallahassee, and Moisés Jrade, Assistant Attorney General, Ft. Lauder-dale, for Appellant.
    Nancy Little Hoffman, Pompano Beach, and Robert W. Sehlorff, Ft. Lauderdale, for Appellee.
   PER CURIAM.

We treat appellee’s “acknowledgment of controlling case” as a concession of error, which we find to be well taken. On the authority of the Department of Revenue ex rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011), the final administrative support order being appealed herein is reversed, and the matter is remanded to the Division of Administrative Hearings for further proceedings. In light of this disposition, appellant’s pending motion to strike is denied as moot.

PADOVANO, ROBERTS, and SWANSON, JJ., concur.


text:
    Raquel D. MOLLINEA, n/k/a Raquel Diaz, Former Wife, Appellant, v. Humberto A. MOLLINEA, Former Husband, Appellee.
    No. 1D10-5507.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2012.
    Beth M. Terry of the Law Office of Beth M. Terry, P.A., Jacksonville, for Appellant.
    Humberto A. Mollinea, pro se, Appellee.
   PER CURIAM.

We have for review an “Order on Former Wife’s Motion to Enforce Reimbursement of Mortgage Payments, Motion for Contempt Regarding Payment of Attorney’s Fees and Costs, and Motion for Attorney’s Fees and Costs.” The order grants the motion for contempt, but denies the motions for reimbursement of mortgage payments and for attorney’s fees. We affirm the portions of the order granting Appellant’s motion for contempt and denying her motion for attorney’s fees and costs. But we reverse the denial of Appellant’s motion for reimbursement of mortgage payments, and we remand to the trial court for further fact finding.

The court denied reimbursement of mortgage payments because “[a]ll allocations regarding reimbursement of the mortgage payments between the parties have been previously decided by this Court.” Our review of the record reveals otherwise. It appears the court relied on two prior orders: the June 4, 2007, “Order on Former Wife’s Emergency Motion” and the June 10, 2008, “Order on All Pending Motions.” In pertinent part, the orders provided that Appellant is not entitled to receive reimbursement from Appellee of one-half the mortgage payments made on the former marital home between 2003, when the parties divorced, and 2008, when Appellant refinanced the home and purchased Appellee’s equity in it. The court subsequently vacated those provisions in an order dated November 17, 2008, and specifically stated, “The Court reserves jurisdiction to ... determine the appropriate credit due to Former Wife from Former Husband for one-half of the mortgage payments on the former marital home made by her.” We therefore remand to the trial court to make the determination based on the evidence the parties presented on this issue.

As to Appellant’s motion for fees and costs, the trial court denied the motion, finding simply that “[a]n award of attorney’s fees and costs for the present litigation is not appropriate.” We find the record on appeal insufficient to enable our review of this ruling. Although the hearing transcript is in the record, it is apparent that the trial court explicated its reasoning in a separate document prior to rendering the. final order. But such document is not in the record. Accordingly, we must affirm the denial of attorney’s fees and costs. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

AFFIRMED in part; REVERSED in part; and REMANDED.

WETHERELL, MARSTILLER and SWANSON, JJ., concur.