text:
    K.R.L., the mother, Appellant, v. The DEPARTMENT OF CHILDREN & FAMILY SERVICES, and the Guardian Ad Litem Program, Appellees.
    No. 3D11-2632.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, for appellant.
    Karla Perkins for the Florida Department of Children & Family Services; Hillary S. Kambour for the Guardian Ad Li-tem Program.
    Before, RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

The mother, K.R.L., appeals from the trial court’s final judgment terminating her parental rights as to her child, A.M.L. We reverse the order terminating the mother’s parental rights as there is not clear and convincing evidence in the record to support the termination under section 39.806(l)(f) or (g), Florida Statutes (2010).

The child, A.M.L., came into child protective services of the Department of Children and Family Services [“DCF”] at two months of age. The mother had brought the infant to the emergency room on the advice of her child’s pediatrician, after the child fell and hit his head. Further examination of the baby revealed eighteen unexplained rib, leg and arm fractures in various stages of healing, in addition to a skull fracture. The mother denied any knowledge of the injuries except for the skull fracture, which she explained was accidental. DCF was notified and initiated an investigation. DCF subsequently sought termination of both parents’ rights pursuant to sections 89.806(l)(f), (g) Florida Statutes (2010). The record shows that the evidence presented to the trial court did not reach the statutory requirement of “clear and convincing” necessary to terminate the mother’s parental rights.

The State’s expert witness physician, Dr. Biehler, consultant for the University of Miami Child Protection Team, reviewed the child’s medical records and testified that the rib, leg and arm fractures were not injuries that could be sustained in the ordinary course of play or handling a baby. He also testified that it was possible that, if a person did not know what had happened, one might not realize the child’s expressions of pain or discomfort were as a result of a fracture, but might be misinterpreted by a layperson as colic or fussiness. He also testified that the skull fracture was consistent with an accidental injury. The child’s pediatrician, Dr. Lovo, testified that he saw the baby six times over the first two months of the child’s life, including the ten days prior to the child’s removal. He testified that during his examinations of the child he found the baby healthy, happy and content and did not observe any signs of the healing fractures or abuse in question. There is sufficient evidence in the record to implicate the father as the perpetrator of the abuse but not the mother. Detective LaRochelle, the lead detective investigating the allegations of child abuse, testified that he believed the father inflicted the injuries to the child, and also stated that the mother was not a suspect. After hearing from the parties and witnesses, the court concluded that the baby suffered egregious abuse and terminated the parental rights of both the father and mother.

After a thorough examination of the record, we find that record is devoid of the clear and convincing evidence necessary under statute to terminate the mother’s parental rights. See R.P. v. Dep’t of Children & Family Servs., 975 So.2d 435, 436 (Fla. 2d DCA 2007) (holding that a trial court’s determination that clear and convincing evidence supports the termination of parental rights will not be overturned, unless found to be clearly erroneous or lacking in evidentiary support); T.V. v. Dep’t of Children & Family Servs., 905 So.2d 945, 946 (Fla. 3d DCA 2005) (holding that the standard of review where a trial court terminates parental rights on the basis of egregious conduct is whether the order is supported by competent substantial evidence); F.R. v. Dep’t of Children & Family Servs., 826 So.2d 449, 450 (Fla. 5th DCA 2002); M.R. v. Dep’t of Children & Family Servs., 783 So.2d 277, 278 (Fla. 3d DCA 2001).

In order to grant a petition for termination of parental rights, a trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination exists and that termination is in the manifest best interests of the child. See § 39.802(4)(a), (c), Fla. Stat. (2010); Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991) (holding that, before a parent’s rights can be terminated, the Department must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child). Further, because parental rights constitute a fundamental liberty interest, DCF must establish that termination of parental rights is the least restrictive means of protecting the child or children from serious harm. Id. at 571; see also J.C. v. Dept. of Children and Family Servs., 937 So.2d 184, 193 (Fla. 3d DCA 2006) (holding that natural parents have a fundamental liberty interest in the care, custody, and management of their children); L.D. v. Dept. of Children and Family Servs., 957 So.2d 1203 (Fla. 3d DCA 2007).

All parties, including the mother, accepted the court’s determination that the injuries to the infant constituted egregious abuse under section 39.806(l)(f). A finding of “egregious” abuse allows the court to terminate a parent’s rights without any further proceedings, and provides for termination of a parent who does not inflict the injuries but had the opportunity to prevent the injury and knowingly failed to prevent egregious conduct toward the child. § 39.803(2), Fla. Stat. (2010). Arguing that proposition, the trial court agreed with DCF that the mother “knowingly-failed to prevent” the injuries. The trial court’s order, however, is not based on competent, substantial record evidence, but rather on the trial court’s speculation that the mother “knowingly failed to protect” her child from abuse. This uncertainty as to the mother’s role in her child’s abuse is reflected in the trial court’s order, wherein the judge states that, “[H]ere it is not completely clear to this court other than the presumption of a theory as to who perpetrated the abuse.” This speculation is not “clear and convincing” evidence and is not a valid basis for terminating the mother’s parental rights. See In re C.W.W., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001).

Furthermore, the trial court did not distinguish between the mother and the father when making its required statutory findings, whereas the record certainly provides a basis to distinguish between the father’s behavior versus the mother’s conduct towards the child. The record does not provide any support for the trial court’s generalized conclusions that the mother knew that the father had abused the child, knew that the child had fractured bones or the extent of the child’s injuries, and knowing these things failed to protect the child from harm. In fact, there is affirmative record evidence that the mother took the child to the doctor at every instance the child registered discomfort. The findings of fact in the order under review are inconsistent with the record below. Full and accurate fact finding is essential not only on the question whether DCF has authority to terminate parental rights but also on the question whether it is in the child’s best interests to do so. See § 39.809(5), Fla. Stat. (2009); In re L.H., 647 So.2d 311, 311-12 (Fla. 5th DCA 1994); see also In re K.M., 788 So.2d 306, 306 (Fla. 2d DCA 2001) (noting that when at least one of the grounds for termination of parental rights has been established, the “issue then is whether the DCF proved by clear and convincing evidence the additional requirement that termination is in the manifest best interests of the children”); L.J.R. v. T.T., 739 So.2d 1283, 1287 (Fla. 1st DCA 1999) (stating that in termination of parental rights proceedings, even when statutory requirements are proven, a trial court still must determine whether termination of parental rights is in the child’s manifest best interests).

Given the lack of clear and convincing evidence of the mother’s knowledge of and/or acquiescence to the abuse, we are troubled that DCF never revisited or revised its strategy as to the mother and child to consider a plan of reunification and provision of services once the abusive father was no longer a threat to the child. The record indicates that, not only did the mother eject the father from the home and moved to avoid further contact with him, the father fled the country during the initial proceedings, is subject to arrest upon re-entry to the United States, and is permanently out of the mother’s and child’s life. This changes the entire landscape of the child’s “manifest best interest” considerations with regard to the remaining parent. In fact, expert witnesses testified that if they knew that the person who harmed the child no longer had access to the child, this knowledge would mean that the child was no longer in danger. See A.H. v. Dep’t of Children & Families, 77 So.3d 232 (Fla. 3d DCA 2011) (finding evidence was insufficient to establish that continued interaction with mother threatened the life, safety or health of her children and that the threat could not be remedied by the provision of services, in termination of parental rights proceeding; there was no allegation that mother had harmed her children or had not provided for their care and where father was no longer a threat to the children).

Contrary to the trial court’s order, there is no record evidence to support a finding that the child would be in danger while in the mother’s exclusive care and there is no record evidence that the mother could not provide for the child’s mental or physical well-being. To the contrary, we find affirmative record evidence that the mother is amenable to services, she is healthy, does not abuse drugs, is attending school, provided pre-and post-natal medical care to her child, provided clothing, food, and love for her son while he was in her care, and sent clothing and baby items to him while he was in protective services.

Finding that DCF failed to show by clear and convincing evidence that the mother caused any of the child’s injuries, or knew of the abuse and failed to protect the child from such, we reverse and remand with instructions to dismiss the order terminating the mother’s parental rights, and remand for further proceedings.

Reversed and remanded.

      . The Father’s parental rights were also terminated. He has not appealed and that termination order stands.

      . The mother's boyfriend, who is the child's father, lived with the mother until she ended the relationship and ejected him from the home after the start of termination proceedings. The record indicates that the father has since fled the country and is subject to arrest upon re-entering the United States.

      . Those sections provides that termination of parental rights is appropriate when:
      (f) The parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child's sibling.
      1. As used in this subsection, the term "sibling” means another child who resides with or is cared for by the parent or parents regardless of whether the child is related legally or by consanguinity.
      2. As used in this subsection, the term "egregious conduct” means abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.
      (g) The parent or parents have subjected the child or another child to aggravated child abuse as defined in s.827.03, sexual battery or sexual abuse as defined in s.39.01, or chronic abuse.

      . Neither did the court find that the mother engaged in any conduct that was "deplorable, flagrant, or outrageous by a normal standard of conduct” as required by § 39.806(l)(f) to sustain termination under an "egregious” conduct standard.

      . The expert witness physician, Dr. Biehler, testified that if the perpetrator was no longer present, he would think that the child was no longer in danger. The Guardian ad Litem [GAL] testified that if he knew that the person who caused the injuries was removed from the child’s environment, he would have to reconsider his recommendation for termination of parental rights.

      . The mother’s psychologist, Dr. Archer, testified that the mother was not a threat to her child and could benefit from parenting services.

      . Moreover, the Guardian ad Litem who testified that termination was proper had met the mother only once and had never observed her interact with her child, and so was unable to testify as to any bond that might exist between them. The trial court acknowledged that the mother, through no fault of her own, has been prevented from seeing her child since he was placed in pre-adoptive foster care, but this is not evidence from which the trial court may conclude that there is no love, affection, or emotional bond between the mother and her child.


source: Caselaw Access Project

author: SCHWARTZ, Senior Judge.

license: Public Domain

text:
    Michael Person, a.k.a. Michael PEARSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2211.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.

      Carlos J. Martinez, Public Defender, Eleventh Judicial Circuit of Florida, and Thomas Regnier and Amy Weber Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Of the five separate violations found by the trial court in its order of July 22, 2010, resulting in the revocation of Person’s probation and ensuing maximum thirty-year sentence, we find that three are unsupportable:

1. Whde Person was charged with an aggravated battery in violation of condition K4 by failing to live and remain at liberty without violating any law, the trial court found that the offense had not been established even by a preponderance of the evidence, as required to support a probation violation. While the court found that there was probable cause for his arrest on that charge, a mere arrest is obviously insufficient to establish a violation. See Hines v. State, 358 So.2d 183, 185 (Fla.1978); Hernandez v. State, 33 So.3d 143 (Fla. 2d DCA 2010); Sharpston v. State, 895 So.2d 1225 (Fla. 2d DCA 2005).

2. The claimed violation by Person’s failure to attend a substance abuse evaluation cannot stand because there is no such standard condition of probation, and none was clearly enunciated during the oral pronouncement of additional ones. See Lawson v. State, 969 So.2d 222, 227 n. 3 (Fla.2007); Cole v. State, 932 So.2d 1123 (Fla. 4th DCA 2006); Parrish v. State, 898 So.2d 1074 (Fla. 1st DCA 2005).

3. It was alleged that Person had violated condition L3 of the order of probation in that he failed to file job search logs. Because there was no orally pronounced or written order which required the filing of such documents, he could not have been violated on this ground. See Williamson v. State, 43 So.3d 843 (Fla. 1st DCA 2010); Bell v. State, 24 So.3d 712 (Fla. 2d DCA 2009); Morales v. State, 518 So.2d 964 (Fla. 3d DCA 1988). The trial judge, however, found that he had violated condition L4 “by failing to being gainfully employed as evidenced by his failure to submit weekly job search logs as instructed by his probation officer.” (emphasis added). This finding is also unsustainable because (a) it represents a deviation from the accusations of the affidavit of violation of probation; see Garcia v. State, 73 So.3d 823 (Fla. 5th DCA 2011); Wilson v. State, 506 So.2d 1170 (Fla. 3d DCA 1987), and (b) there was insufficient evidence as to whether he had in fact failed to be “gainfully employed.” See Galego v. State, 27 So.3d 152 (Fla. 3d DCA 2010); Mitchell v. State, 607 So.2d 486 (Fla. 3d DCA 1992). Accordingly, violations 2, 3, and 5 are stricken from the order revoking probation.

We do find that the remaining two violations, driving without a valid license and failing to report timely to his probation officer, were both lawfully imposed and correctly found to have been violated. See Mata v. State, 31 So.3d 257 (Fla. 4th DCA 2010); Blake v. State, 21 So.3d 129 (Fla. 3d DCA 2009); Thompson v. State, 994 So.2d 468 (Fla. 3d DCA 2008). While we affirm the revocation based upon the latter two grounds, violations 1 and 4, we remand for resentencing based only on those two violations we have approved. See Blake, 21 So.3d at 129; Estevez v. State, 705 So.2d 972 (Fla. 3d DCA 1998).

Affirmed in part, reversed in part, and remanded for resentencing.

      . A subsequent order filed July 30, 2010, was obviously entered in error and is stricken.

      . The only conceivable reference to such a condition seems to have related instead to the process for acquiring a restricted driver's license.
      THE COURT: Oh I’m sorry.
      I also have to tell you, there is a two-year DL suspension.

        However, in six months, if you are otherwise eligible and you’ve undergone an evaluation, which you’re going to do for substance-abuse issues, and treatment is deemed necessary, you must enter, comply with, and successfully complete a program. Okay?
      And so then you can petition if you're otherwise eligible for restricted license.
      Do you understand that? Yes?
      THE DEFENDANT: Yes.
      THE COURT: Okay. Very well. So there is the two-year DL suspension.


author: EMAS, J.

text:
    Anthony MACKEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2415.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.

      Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano and Shayne Burnham, Assistants Attorney General, for appellee.
    Before CORTINAS, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Anthony Mackey appeals his convictions for carrying a concealed firearm and possession of a firearm by a convicted felon, contending that the trial court erred in denying his motion to suppress. We affirm.

The relevant facts are not in dispute: Officer May, a member of the City of Miami Police Department, was driving his marked patrol car in an area of Miami when he saw Mackey standing alone on one side of a fence by an apartment complex. There were several people standing on the other side of the fence. Officer May slowed down and, as he drove slowly by Mackey, noticed a solid object inside Mackey’s pocket. As he drew closer to Mackey, Officer May saw a “piece of the handle sticking out. Not much, but a piece enough for me to identify a firearm.” Based upon his training and experience, Officer May was able to identify the object as a firearm. The officer had no prior contact with Mackey, nor did he know whether Mackey had a permit to carry a concealed firearm. There was no evidence that Mackey was engaged in any other criminal or suspicious activity.

Officer May got out of his vehicle, approached Mackey, and asked whether Mackey had anything on him. Mackey replied “no.” The officer asked Mackey if he could pat him down, The officer proceeded to conduct a pat-down of Mackey’s pocket and felt the firearm he had seen earlier. Officer May retrieved the firearm and inquired whether Mackey had a permit to carry a concealed firearm. Mackey indicated he did not, after which Officer May arrested Mackey for carrying a concealed firearm. It was later determined that Mackey had a prior felony conviction, resulting in the additional charge of possession of a weapon by a convicted felon.

Mackey filed a motion to suppress the firearm on the basis that the arresting officer lacked the necessary reasonable suspicion to initiate the investigatory stop which led to the pat-down and the discovery of the firearm. Following a suppression hearing, the trial court denied the motion to suppress. Mackey subsequently pled guilty to the two charges, reserving the right to appeal the denial of the dispos-itive motion to suppress. This appeal followed.

A trial court’s ruling on a motion to suppress comes to us clothed with a presumption of correctness. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). The reviewing court must interpret the evidence and reasonable inferences from that evidence in a light most favorable to sustaining the trial court’s ruling, and we are bound by the trial court’s factual findings if they are supported by competent, substantial evidence. Id. The trial court’s application of the law to the historical facts are subject to de novo review. Id.

Mackey argues here, as he did in the trial court, that the firearm should be suppressed because the two undisputed facts — that Mackey was carrying a firearm and the firearm was concealed — do not, standing alone, provide reasonable suspicion to warrant an investigatory stop. Mackey contends that, since it is legal to carry a concealed firearm in Florida if you have a license to do so, the officer did not have reasonable suspicion unless and until he had reason to believe that Mackey did not have such a license. For this proposition, Mackey relies on the decision of Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2010).

In Regalado, a police officer was in his marked patrol car when he was approached by a citizen who advised the officer that “some guy was over there flashing his gun to a couple of friends.” The citizen explained that a man in a restaurant had raised his shirt, exposing the gun in his waistband to his friends at the table. The citizen said the man did not remove the gun from the waistband. The citizen provided the officer with a description of the man. As the officer and citizen were talking, Regalado walked by, and the citizen identified him as the man with the gun in the restaurant. The officer asked the citizen for his name, but the citizen refused because he was scared. The citizen then “took off.” Id. at 601.

The officer began to follow Regalado and, as the officer got within six to eight feet of Regalado, Regalado turned and looked around. At that point, the officer observed a bulge in Regalado’s waistband. Based upon his training and experience, the officer believed it was the butt of a firearm. Because Regalado was nearing a crowd of people, the officer drew his service revolver and ordered the suspect to the ground. The officer conducted a pat-down, felt the object, determined it was a firearm, and retrieved it. Id.

The trial court denied the motion to suppress. In a two-to-one opinion, the Fourth District reversed, framing the issue as “whether the stop met the Terry requirements.” Id. at 602. The Court held the stop did not meet the Terry requirements, explaining:

[T]he only information received by the officer was that the individual had a gun. Possession of a gun is not illegal in Florida. Even if it is concealed, it is not illegal if the carrier has obtained a concealed weapons permit. Although the officer observed a bulge in Regalado’s waistband, which in his experience looked like a gun, no facts and circumstances were presented to show that Re-galado’s carrying of a concealed weapon was without a permit and thus illegal. The officer admitted in his testimony at the suppression hearing that he had not observed any criminal behavior. He did not see the defendant threaten anyone with a gun, nor had the anonymous tipster mentioned the defendant threatening anyone with a gun or even removing it from his pants. The officer did not observe any threatening act against him, which might provide sufficient reasonable suspicion of an assault to permit a Terry stop. The officer also did not know whether the defendant had a permit for carrying a concealed weapon.

Id. at 604 (emphasis added) (internal citations omitted).

Mackey readily and properly acknowledges that the precedent of this Court compels affirmance in the instant case. In State v. Navarro, 464 So.2d 137 (Fla. 3d DCA 1984), this Court, sitting en banc, held that a police officer’s observation of a bulge under the clothing of an individual, which the officer in his training and experience determined to be “the outline of a firearm[,] amounted to probable cause to believe that the individual was carrying a concealed weapon, justifying not merely a pat-down, but a search.” Id. at 139.

In Hernandez v. State, 289 So.2d 16 (Fla. 3d DCA 1974), the defendant was arrested after an officer saw a portion of a firearm partially protruding from a pocket in his trousers. This Court determined that both the arrest (for carrying a concealed firearm) and the seizure of the firearm were proper.

Mackey does not attempt to distinguish Navarro and Hernandez from the instant case. Rather, he asserts that Regalado is the more well-reasoned decision. We do not agree.

Florida generally recognizes three categories of police-citizen encounters:

1. A consensual encounter, which does not implicate any Fourth Amendment concerns, as the individual is free at any time to terminate the encounter with the police. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
2. An investigatory stop or temporary detention (also known as a Terry stop), which requires a reasonable suspicion that an individual has committed, is committing, or is about to commit a crime. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Fla. Stat. § 901.151(2)(1997) (“Florida Stop and Frisk Law”).
3. A formal arrest, which must be supported by probable cause to believe that the individual has committed, or is committing, a crime. Popple v. State, 626 So.2d 185 (Fla.1993).

When Officer May first approached Mackey to ask him questions, the encounter was a consensual one, and no level of reasonable suspicion was required. When Officer May asked Mackey if he could conduct a pat-down search, the encounter remained a consensual one. However, when Mackey did not respond to this question and Officer May proceeded to conduct a pat-down search without Mackey’s consent, the encounter became an investigatory stop, for which Officer May needed reasonable suspicion. In addition, the pat-down search itself required Officer May to have probable cause to believe that Mack-ey was armed with a dangerous weapon.

Mackey contends the arresting officer had no reasonable suspicion to detain him for carrying a concealed firearm. He begins by noting that it is generally not illegal to possess a firearm in Florida. Mackey then argues in his brief, relying again upon Regalado, that “since, under Florida law, carrying a concealed firearm is illegal only if the individual does not have a permit and since the officer had no information suggesting that defendant did not have a permit, the officer lacked reasonable suspicion to stop him for carrying a concealed firearm.” Whether, as a general proposition, mere possession of a firearm is not illegal in Florida, it is beside the point. Mackey was not observed in mere possession of a firearm; rather, he was observed in possession of a concealed firearm, and the officer testified that he observed a “piece of the handle sticking out” of Mackey’s pocket, enabling the officer to identify it as a firearm. It is the concealment of the firearm, not merely its possession, which rendered Mackey’s conduct illegal, and authorized the officer’s actions in this case. Moreover, Mackey’s argument necessarily overlooks the difference between an essential element of the crime and an exception, or affirmative defense, to the crime.

Section 790.01, Florida Statutes (2010) provides in pertinent part:

(2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.

Under Florida law, the crime of carrying a concealed firearm is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person. Smith v. State, 687 So.2d 875 (Fla. 2d DCA 1997); Wolfram v. State, 568 So.2d 992 (Fla. 5th DCA 1990). The statutory provision which addresses the licensed carrying of a concealed firearm is contained in a subsection separate and distinct from the provision which prohibits the carrying of a concealed firearm. Thus, the absence of a license is not an element of the crime, but is considered an “exception” to the crime, and proof that a defendant possessed a license to carry a concealed firearm must be raised as an affirmative defense. Watt v. State, 31 So.3d 238 (Fla. 4th DCA 2010). See also State v. Robarge, 450 So.2d 855 (Fla.1984) (holding that under rules of statutory construction, if an exception is contained in a clause subsequent to the enactment clause of a statute, the exception is an affirmative defense rather than an element of the offense); accord Hodge v. State, 866 So.2d 1270 (Fla. 4th DCA 2004).

Mackey’s argument, and the holding in Regalado, taken to its logical conclusion, would require that a police officer not only have reasonable suspicion of criminal activity, but reasonable suspicion of the nonexistence of an affirmative defense to the crime. We decline the invitation to adopt such a holding, which is contrary to both precedent and common sense.

We affirm the trial court’s order denying the motion to suppress and, given Regala-do’s holding that an officer who observes an individual carrying a concealed firearm does not have reasonable suspicion to conduct a Terry stop, we certify express and direct conflict with the decision in Regala-do.

Affirmed.

      . There is nothing in the record to indicate whether Mackey responded to Officer May's request for consent to conduct the pat-down search.

      . The law is well settled that a firearm which is partially visible may still be "concealed” for purposes of the crime of carrying a concealed firearm. See § 790.001 Fla. Stat. (2010) (defining "concealed firearm" as "any firearm ... which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.”); Ensor v. State, 403 So.2d 349, 354 (Fla.1981) (holding that “absolute invisibility is not a necessary element to a finding of concealment under section 790.001”). Mackey does not contest the trial court’s factual determination that the firearm was "concealed."

      . But see, e.g., § 790.053 Fla. Stat. (2010) (prohibiting the open carrying of a firearm); § 790.22(3) Fla. Stat. (2010) (prohibiting generally the possession of a firearm by a minor).

      . § 790.02 Fla. Stat. (2010) provides;
      The carrying of a concealed weapon is declared a breach of peace, and any officer authorized to make arrests under the laws of this state may make arrests without warrant of persons violating the provisions of s. 790.01 when said officer has reasonable grounds or probable cause to believe that the offense of carrying a concealed weapon is being committed.

      .The standard jury instruction for the crime of Carrying a Concealed Weapon/Firearm (Fla. Std. J. Inst. (Crim.) 10.1) provides:
      To prove the crime of (crime charged), the State must prove the following two elements beyond a reasonable doubt:
      1. (Defendant) knowingly carried on or about [his][her] person (weapon alleged).
      2. The (weapon alleged) was concealed from the ordinary sight of another person.

      . For example, an officer on patrol at midnight in a residential neighborhood observes an individual wearing dark clothing, gloves and a mask. The officer watches the individual enter the rear of a home through a broken window, below which lay shards of glass. Extending the argument advanced by Mackey, the officer would not have reasonable suspicion to justify an investigatory stop until the officer first determined that the individual did not have consent to enter the home. See e.g., § 810.015(3) Fla. Stat. (2010); State v. Hicks, 421 So.2d 510 (Fla.1982); Metales v. State, 963 So.2d 989 (Fla. 4th DCA 2007) (lack of consensual entry is not an element of burglary, but an affirmative defense).


text:
    C.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-181.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Erik D. Kverne, Certified Legal Intern, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before CORTIÑAS, EMAS and FERNANDEZ, JJ.
   EMAS, J.

C.M., a juvenile, was charged by petition with possession of marijuana and possession of drug paraphernalia. Following an adjudicatory hearing, the court determined the evidence sustained the allegation of possession of drug paraphernalia, but entered a judgment of dismissal on the charge of possession of marijuana, finding the State failed to prove beyond a reasonable doubt that the substance was marijuana. On appeal, C.M. contends that the trial court erred in not granting a judgment of dismissal on the remaining charge of possession of drug paraphernalia. We agree and reverse.

A school police officer conducted a search of C.M.’s backpack at school, revealing a plastic case containing a green, leafy substance and a glass ear dropper which had been converted into a makeshift pipe, and which contained a residue. C.M. was arrested and charged with possession of marijuana and possession with intent to use drug paraphernalia. The school police officer testified at trial that he believed both the green leafy substance and the residue found inside the ear dropper were marijuana because, in his experience, they looked and smelled like marijuana. The officer testified that both items were sent to the lab for testing; however, no test results were introduced into evidence at the adjudicatory hearing.

On cross-examination, the officer admitted that although he was familiar with the look and smell of marijuana, he understood that synthetic marijuana looks the same and has the same effect as marijuana. The State rested after calling the school police officer.

C.M. testified on his own behalf that the green leafy substance in the case was not “real” marijuana, but synthetic marijuana called “Mr. Nice Guy” which he had legally purchased at a dollar store. C.M. testified that “Mr. Nice Guy” looks and smells exactly like “real” marijuana, and that he used the ear dropper to smoke “Mr. Nice Guy” prior to his arrest. He also testified that the friend who had given him the ear dropper probably had used it to smoke marijuana in the past.

After the defense rested, the State recalled the school police officer, who testified in rebuttal that real marijuana had a smell that was distinct from synthetic marijuana. He acknowledged in cross-examination that he had seen only one type of synthetic marijuana, and that he had received no training regarding synthetic marijuana.

At the close of all the evidence, C.M. moved for a judgment of dismissal on both charges. The court determined that there was a reasonable doubt whether the substance possessed by C.M. was marijuana or synthetic marijuana, and entered a judgment of dismissal on that charge. However, the court found C.M. guilty of the charge of possession of drug paraphernalia.

We review de novo the trial court’s denial of a motion for judgment of dismissal. C.W. v. State, 76 So.3d 1093 (Fla. 3d DCA 2011).

Section 893.147(l)(b), Florida Statutes (2010) provides:

(1) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia:
(b) To inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
Any person who violates this subsection is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(Emphasis added).

To sustain this charge, the State was required to prove not merely that C.M. possessed drug paraphernalia, but that C.M. possessed drug paraphernalia and either used it, or intended to use it, to inhale a controlled substance (in this case, marijuana).

Although it may well be that the evidence established the ear dropper qualified as “drug paraphernalia,” the evidence failed to establish that C.M. used the ear dropper to smoke marijuana or intended to use it for that purpose. This conclusion necessarily follows from the trial court’s finding that there was reasonable doubt whether the substance C.M. possessed was real marijuana or synthetic marijuana. Because there was insufficient evidence to establish beyond a reasonable doubt that the substance C.M. possessed was marijuana, and absent any other evidence of C.M.’s intent, the evidence also was insufficient to establish beyond a reasonable doubt that C.M. “use[d] or possessed] with intent to use” the ear dropper “to inhale ... a controlled substance.” § 893.147(l)(b) Fla. Stat. (2010). Goodroe v. State, 812 So.2d 586 (Fla. 4th DCA 2002).

The State argues the evidence was sufficient to sustain the charge because the officer (deemed an expert by the court) testified he believed the residue in the ear dropper was marijuana. Such an argument lacks merit under the facts of this case, however. Given the trial court’s finding that the officer’s testimony was insufficient to establish beyond a reasonable doubt that the green leafy substance possessed by C.M. was real, as opposed to synthetic, marijuana, the officer’s testimony necessarily was insufficient to establish beyond a reasonable doubt that the residue found in the ear dropper was real, as opposed to synthetic, marijuana.

The State also argues that the mere fact C.M. was found not guilty of the possession of marijuana charge does not prohibit a finding of guilt on the charge of possession of drug paraphernalia. In support of this proposition, the State cites Grady v. State, 753 So.2d 744 (Fla. 3d DCA 2000).

In Grady, police observed the defendant in the front passenger seat of a parked car, tossing a small baggie over his shoulder into the back seat. The police approached the car, ordered him out and noticed a small gold scale clipped to his pants pocket and a hand-rolled cigarette behind his ear. The police searched the car and the other passengers, finding fifty-three ounces of marijuana, 2.4 grams of cocaine, and Rohypnol tablets. The cigarette behind Grady’s ear tested positive for traces of cocaine. Grady was charged with possession of cocaine, possession of marijuana, and possession of drug paraphernalia. Grady was acquitted of the marijuana possession charge, but convicted of possession of cocaine and possession of drug paraphernalia. At trial, a police detective testified that he knew of no other use for the scale seized from the defendant other than for the weighing of marijuana.

On appeal, Grady argued that he could not be convicted of the drug paraphernalia charge because he was found not guilty of the marijuana possession charge. In affirming the conviction for possession of drug paraphernalia, this Court stated “section 893.146 does not require that a defendant be convicted of possession of the nearby illegal drug before it may be considered in determining whether the object seized is drug paraphernalia.” Id. at 745. The State relies upon this statement to support its position that the finding of guilt in this case should be affirmed.

While it is true that the mere fact that one is acquitted of possession of a nearby controlled substance does not automatically foreclose a conviction for possession of drug paraphernalia, the State ignores significant facts which distinguish Grady from the instant case: In Grady, the substance seized from the vehicle was in fact marijuana, a controlled substance. Thus Grady (and the scale) were found in close proximity to a controlled substance, a factor expressly to be considered under section 893.146 in determining whether an object constitutes drug paraphernalia and in considering whether the object was intended to be used for an illicit purpose. See § 893.146(3) Fla. Stat. (2010) (“The proximity of the object to controlled substances.”). By contrast, in the instant case there was no controlled substance in the proximity of C.M. or the ear dropper, and thus no evidence from which one could infer that C.M. intended to use the ear dropper to inhale a controlled substance.

Further, in Grady the testimony established that the only known use for the scale was to weigh marijuana. By contrast, in the instant case, C.M. testified that he used the ear dropper to smoke synthetic marijuana, a non-controlled substance. See § 893.146(1) Fla. Stat. (2010) (“Statements by an owner or by anyone in control of the object concerning its use.”). C.M.’s testimony either was accepted by the trial court or, at the very least, created a reasonable doubt-given the trial court’s determination that there was insufficient evidence to establish the substance in C.M.’s possession was in fact a controlled substance.

Because the evidence failed to establish the substance in C.M.’s possession was a controlled substance, and the absence of any other evidence that C.M. used or intended to use the object to smoke marijuana, the finding of guilt for possession of drug paraphernalia cannot stand. Goodroe, 812 So.2d at 588; Nixon v. State, 680 So.2d 506 (Fla. 1st DCA 1996).

Reversed and remanded with directions to enter a judgment of dismissal as to the charge of possession of drug paraphernalia.

      . The trial court determined that the school police officer could testify as an expert on the identification of marijuana.

      . The State acknowledges that synthetic marijuana is not a "controlled substance” under Chapter 893, Florida Statutes (2010).

      .C.M. had previously moved for a judgment of dismissal at the end of the State’s case. That motion was denied.

      . Section 893.146, Florida Statutes (2010) provides in pertinent part:
      In determining whether an object is drug paraphernalia, a court or other authority or jury shall consider, in addition to all other logically relevant factors, the following:
      (1) Statements by an owner or by anyone in control of the object concerning its use.
      (2) The proximity of the object, in time and space, to a direct violation of this act.
      (3) The proximity of the object to controlled substances.
      (4) The existence of any residue of controlled substances on the object.

      (12) The existence and scope of legitimate uses for
      the object in the community.
      (13) Expert testimony concerning its use.

      . We of course do not know why the jury acquitted Grady of the marijuana charge, but it is worth noting that there were other passengers in the vehicle in which the marijuana was found. See, e.g., Ford v. State, 69 So.3d 391 (Fla. 2d DCA 2011).


author: SHEPHERD, J.

text:
    Mark A. DRURY, Appellant, v. NATIONAL AUTO LENDERS, INC., etc., Appellee.
    No. 3D11-2163.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Ausley & McMullen, and Major B. Harding and Ruth E. Vafek, Tallahassee, for appellant.
    Jorden Burt and Elizabeth M. Bohn, Miami, for appellee.
    Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   SHEPHERD, J.

This is an appeal from an order denying Mark Drury’s motion, brought pursuant to Florida Rule of Civil Procedure 1.540(b)(4), for relief from a default money judgment obtained against him after he was served with process by publication pursuant to section 49.011, Florida Statutes (2009), on the ground the judgment is void. We find the trial court erred in denying the motion.

This case arises out of an action by National Auto Lenders, Inc. against Drury for breach of a personal guaranty. National Auto attempted to serve Drury personally at his gated home in Nassau County, but failed, despite the fact it appeared the house was occupied and records indicated Drury resided there. Justifiably concluding Drury was evading service, National Auto then served Drury by publication under section 49.011, Florida Statutes. Although counsel for Drury's failed corporation, also a defendant, knew of the filing of the complaint against Drury and attempted service, Drury elected not to respond. Ultimately, National Auto obtained a final default judgment against Drury personally in the sum of $114,298.32.

After receiving a post-judgment order to complete a fact information sheet, divulging his income and assets pursuant to Florida Rule of Civil Procedure 1.560(b), which had been mailed to the same Nassau County address at which service had been attempted, Drury filed a motion for relief from the default judgment, asserting service by publication pursuant to section 49.011 was neither a statutorily authorized nor a constitutionally sufficient method of securing the in personam jurisdiction over him necessary to sustain the default final judgment. We agree with Drury.

Service of process by publication is authorized only under certain enumerated instances listed under section 49.011 of the Florida Statutes. “[Sjtrict and substantial compliance with the provisions of [the] statute must be shown in order to support the judgment.... ” Napoleon B. Broward Drainage Distr. v. Certain Lands Upon Which Taxes Due, 160 Fla. 120, 83 So.2d 716, 718 (Fla.1948). National Auto argues service by publication was proper in this case under section 49.011(1) of the Florida Statutes (2009), authorizing service by publication “[t]o enforce any legal or equitable lien or claim to any ... debt owing by any party on whom process can be served within this state.” (Emphasis added). However, this subsection of 49.011 of the Florida Statutes does not apply to an action filed to obtain a judgment on a personal guaranty. Such an action for our purposes is akin to and legally indistinguishable from an action for breach of contract, on which this Court has concluded that service by publication does not lie. See Zieman v. Cosio, 578 So.2d 332, 332 (Fla. 3d DCA 1991) (finding actions for money damages and rescission of the contract are not actions enumerated in section 49.011); see also Meiliunas v. O’Leary, 483 So.2d 509, 510 (Fla. 4th DCA 1986) (holding suit on a promissory note was not type of case in which service by publication can be utilized). Service by publication to enforce a personal guaranty is not authorized under the statute.

Moreover, because “[a] personal judgment against a defendant based upon constructive service of process would deprive a defendant of his property without due process of law,” see Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla.1986) (citing Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940)), the service attempted in this case also is constitutionally deficient. Service by publication confers only in rem or quasi in rem jurisdiction upon a trial court. Zieman, 578 So.2d at 332. A personal money judgment necessitates in personam jurisdiction over the defendant. See id. at 333.

The fact that Drury likely was evading personal service of process and might even have had actual knowledge of the existence of the action against him is legally irrelevant to our decision. See Napoleon, 33 So.2d at 718 (“The fact that the defendant had actual knowledge of the attempted service cannot be relied upon to justify ... service by publication”). Section 48.161 of the Florida Statutes delineates the proper method for achieving substituted service of process upon a person concealing his whereabouts in this state. See Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So.3d 695, 699 (Fla. 4th DCA 2010). We reverse the order on appeal with the direction to the trial court to vacate the final judgment.

Reversed and remanded for further proceedings.


author: PER CURIAM.

text:
    Erik A. PEHRMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1648.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Erik Pehrman, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Erik Pehrman appeals an order summarily denying his Rule 3.850 motion for postconviction relief, in which he claims ineffective assistance of counsel for failure to convey a plea offer. We conclude that Pehrman’s motion is legally insufficient, but affirm without prejudice to allow him an opportunity to amend his Rule 3.850 motion to state a legally sufficient claim.

In 2005, Pehrman entered into a negotiated plea agreement with respect to two pending cases. In his 2003 case, Pehrman pled guilty to one count of trafficking in cocaine and was sentenced to a three-year mandatory minimum sentence. In his 2004 case, Pehrman pled guilty to attempted first degree murder with a deadly weapon, for which he received thirteen years in prison; aggravated assault with a deadly weapon, for which he received five years; and two misdemeanor charges, for which he received time served. Pehrman’s sentences in the 2003 and 2004 cases were to be served concurrently.

In August 2008, Pehrman filed the instant Rule 3.850 motion for postcon-viction relief. The motion is captioned only in connection with the 2004 case. Pehrman alleged that he recently discovered that the state had extended a seven-year plea offer to resolve his case to his former retained attorney and that the attorney never conveyed that plea offer to him. According to Pehrman, he first learned about the plea offer from his former attorney’s April 18, 2008, response to his Bar complaint against her. In the response, his attorney stated that she had agreed with the prosecutor to a seven-year term of incarceration conditioned on Pehr-man’s agreement to take a psychological examination and the examination results showing mental defects in Pehrman’s thought process. Later, after terminating his former attorney’s services, he entered a negotiated plea which called for a thirteen-year sentence.

The state asserted several reasons for summary denial of Pehrman’s postconviction motion, including that Pehrman is not entitled to relief because, in the course of his plea colloquy, a transcript of which was attached to the order of denial, Pehrman agreed that he had submitted to a mental health evaluation, which showed that he did not have a mental problem. That finding, according to the state, would have rendered the plea offer a nullity, because — according to the terminated attorney’s letter — it was conditioned on the evaluation showing “mental defects in his thought process.” We find, however, that the portion of the plea colloquy on which the state relies is not conclusive of the issue, as we cannot glean that the examination mentioned was the one upon which the plea offer was conditioned.

We therefore affirm the summary denial of Pehrman’s motion for postconviction relief, but under Spera v. State, 971 So.2d 754 (Fla.2007), he is permitted to file an amended motion to allege, if he can do so under oath, that he met the conditions of the plea offer, i.e., that he had a mental health examination which showed a defect in his thinking process at or during the time contemplated by the plea offer.

Affirmed.

WARNER, TAYLOR and CONNER, JJ., concur.


text:
    Terrince ERVIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2163.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Terry P. Roberts of the Law Office of Terry P. Roberts, Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals his convictions for sexual battery with great harm or a deadly weapon by multiple perpetrators, robbery with a firearm, and burglary of a dwelling with an assault or battery while armed. At trial, a forensic biologist testified that DNA in a condom recovered by police matched appellant’s DNA. She further testified, over appellant’s objection, that the statistical likelihood of someone else sharing the same DNA as appellant was one in “57 quadrillion, 210 trillion.” On appeal, appellant contends that the trial court erred in allowing the expert’s statistical testimony where she did not prove her familiarity with the database used and the methodology behind the software. We find this issue is not preserved, as appellant objected at trial only on the grounds that the expert was not a statistician. An expert need not be a statistician to be qualified to testify as to the statistical significance of a DNA match. See Darling v. State, 808 So.2d 145, 158 (Fla.2002). Further, even if the issue were preserved, the record reflects that the expert demonstrated “ ‘a sufficient knowledge of the database grounded in the study of authoritative sources.’ ” Butler v. State, 842 So.2d 817, 828 (Fla.2003) (quoting Murray v. State, 692 So.2d 157, 164 (Fla.1997)). We find the other issues raised on appeal to be without merit.

Affirmed.

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    Benjamin JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2578.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Benjamin Jackson, in proper person.
    Pamela Jo Bondi, Attorney General, and Joseph J. Mansfield, Assistant Attorney General, for appellee.
    Before CORTINAS, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion under Florida Rule of Criminal Procedure 3.800(a). Because the record does not conclusively show that appellant Benjamin Jackson is entitled to no relief, we reverse the order and remand the cause for an evidentiary hearing to determine the amount of time to which Jackson is entitled for time served or, in the alternative, for the court to attach the specific portions of the record, or transcript, that support the court’s conclusion that Jackson is only entitled to credit for a total of sixty-five days of time served. See Fla. R.App. P. 9.141(b)(2)(D).

      . Although the State’s response and the court order denying Jackson’s motion for post conviction relief state that Jackson signed an acknowledgement of the amount of credit he was receiving for time served, no such document is attached to the order.


text:
    Hugo A. CIMADEVILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-243.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Rehearing Denied April 12, 2012.
    Hugo A. Cimadevilla, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    John DENSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-223.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    John Denson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); accord Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Colin C. DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-202.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    C. Marie Brevitt-Schoop, Miami, and Orville McKenzie, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Leon JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2791.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Leon Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006).


text:
    Rudolph COLLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1715.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Carlos J. Martinez, Public Defender, Eleventh Judicial Circuit, and Daniel Tib-bitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Whitehead v. State, 21 So.3d 157 (Fla. 4th DCA 2009); Harris v. State, 959 So.2d 794 (Fla. 2d DCA 2007); Guzman v. State, 934 So.2d 11 (Fla. 3d DCA 2006); Guion v. State, 753 So.2d 628 (Fla. 5th DCA 2000); State v. Williams, 465 So.2d 1229 (Fla.1985); Lewis v. State, 377 So.2d 640 (Fla.1979).


text:
    Ruben H. JOVAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-456.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Ruben H. Joval, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Maximo Fermin NOVO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-426.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Rehearing Denied April 17, 2012.
    Grisel Ybarra, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTINAS, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Richard KITTLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5368.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.

      Richard Kittles, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Richard Kittles appeals the denial of his Rule 3.800(a) motion. The motion raises repetitive and meritless claims which are barred by the collateral estoppel doctrine and are not cognizable in a Rule 3.800(a) motion to correct illegal sentence. We affirm and caution appellant that further filing of frivolous appeals will result in sanctions.

Facts and Procedural Background

On May 11, 2000, using a GPS tracking device that had been installed in the vehicle, police located a truck which had been stolen. When confronted by an officer, appellant, and a co-defendant, jumped into the truck, and appellant drove off. Appellant led police on a high-speed chase for at least ten miles until he crashed into a cement pole. He fled on foot but was apprehended after jumping into a canal.

In September 2001, a jury convicted appellant of second-degree felony aggravated fleeing and eluding (high speed), grand theft auto, and two counts of resisting arrest without violence. The court sentenced him to fifteen years in prison for the aggravated fleeing and eluding, a concurrent term of five years in prison for the grand theft, and concurrent one-year jail terms for the misdemeanor resisting counts. This court affirmed on direct appeal. Kittles v. State, 837 So.2d 991 (Fla. 4th DCA 2003) (table).

In the motion at issue, which was filed April 9, 2010, appellant argued that he was entitled to postconviction relief because the court relied on inaccurate information regarding his prior record at the sentencing hearing and that his scoresheet was in error. He claimed that he was not given prior notice that the court would review documents relating to his prior convictions at sentencing, that certain juvenile offenses should not have been scored or considered by the court, and that the State allegedly failed to present sufficient proof of his prior convictions. The rambling motion also raised a confused challenge to the conviction for aggravated fleeing and eluding.

The trial court denied the motion based on the State’s response which explained that the claims are barred as they have been raised and rejected in three prior motions, that the claims do not allege or establish an actual illegal sentence, and that the claims are without merit because appellant declined during the sentencing hearing an opportunity for more time to challenge his prior record.

Appellant has not filed an initial brief identifying any arguable point of error in this appeal.

Analysis

To the extent the claims challenge the sufficiency of the procedure or the adequacy of the proof at sentencing, the claims are procedurally barred and not cognizable in a Rule 3.800(a) motion. See Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (citing Bover v. State, 797 So.2d 1246, 1251 (Fla.2001)). Appellant’s confused and meritless claim challenging his aggravated fleeing conviction is not well brought as appellant may not challenge a conviction in a Rule 3.800(a) motion. The time for filing a Rule 3.850 motion expired long ago, and the present claims would be untimely and successive if filed in such a motion. Fla. R.Crim. P. 3.850(b), (f).

Presently, Rule 3.800(a) permits a claim of scoresheet error, or an illegal sentence, to be raised “at any time.” Fla. R.Crim. P. 3.800(a).

Appellant has raised the same or similar claims in three prior postconviction motions which were denied and affirmed on appeal. He first raised scoresheet issues, including his claim that his juvenile offenses should not have been scored, in his Rule 3.850 motion which was denied and affirmed on appeal. Kittles v. State, 892 So.2d 1047 (Fla. 4th DCA 2005) (table).

Next, appellant filed a Rule 3.800(a) motion wherein he challenged the existence and sufficiency of the proof of his prior convictions and again claimed scoresheet error. The motion was denied and affirmed on appeal. Kittles v. State, 909 So.2d 869 (Fla. 4th DCA 2005) (table).

Finally, appellant filed another Rule 3.800(a) motion repeating his claims of scoresheet error. The motion was denied and affirmed on appeal. Kittles v. State, 963 So.2d 245 (Fla. 4th DCA 2007) (table).

Appellant is collaterally estopped from repeating his scoresheet error claims because they have been previously raised and rejected on the merits. State v. McBride, 848 So.2d 287, 290-91 (Fla.2003). Furthermore, any scoresheet error is harmless in this Rule 3.800(a) posture because the court could have imposed the same sentence absent the scoresheet error. Brooks v. State, 969 So.2d 238 (Fla.2007).

Most importantly, appellant fails to establish that his sentence is illegal within the meaning of Rule 3.800(a). See Carter v. State, 786 So.2d 1173, 1180 (Fla.2001). His fifteen-year sentence is within the statutory maximum for the second-degree felony aggravated fleeing and eluding. § 316.1935(3)(a), Fla. Stat. (1999). The concurrent five-year sentence is within the statutory maximum for third-degree felony grand theft auto. § 812.014(2)(c)6., Fla. Stat. (1999). The one-year sentences for the first-degree misdemeanor resisting without violence counts are also within the statutory maximum. § 843.02, Fla. Stat. (1999).

Conclusion

For the reasons expressed herein, we conclude that the motion at issue was without merit, proeedurally barred, and an abuse of procedure. This appeal is frivolous. Any further frivolous filing will result in referral to prison officials for consideration of disciplinary procedures which may include forfeiture of gain-time. §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2011). Appellant is cautioned that abuse of postconviction process may result in a prohibition against pro se filing. State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed.

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.

      . The Florida Supreme Court is considering amendments that would require claims of sentencing error to be raised within two years of the sentence becoming final. In Re: Amendment to the Florida Rules of Criminal Procedure, SCI 1-1679.


author: ORFINGER, C.J.

text:
    Jeannette CARYI n/k/a Jeannette Colado, Appellant, v. Steven M. CARYI, Appellee.
    No. 5D11-1933.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    Rehearing Denied April 2, 2012.

      Charles W. Willits, Orlando, for Appellant.
    Mark P. Lang, of Mark Lang & Associates, Winter Park, for Appellee.
   ORFINGER, C.J.

The former wife, Jeannette Caryi, n/k/a Jeannette Colado, appeals an award of attorney’s fees to her former husband, Steven M. Caryi, arising from post-dissolution proceedings. The trial court assessed attorney’s fees of $16,965, and costs of $1,295, against the former wife, finding that the former wife’s actions during the post-dissolution litigation were “vexatious, unnecessary and infectious (sic).” We reverse.

An award of attorney’s fees in a dissolution proceeding is reviewed for the abuse of discretion. Joachim v. Joachim, 942 So.2d 3, 4 (Fla. 5th DCA 2006). However, the fee award must be supported by competent, substantial evidence. Faircloth v. Bliss, 917 So.2d 1005, 1006 (Fla. 4th DCA 2006).

While the issue regarding the parties’ financial resources is the primary factor to be considered when awarding fees under section 61.16, Florida Statutes (2010), a trial court may consider other relevant factors such as

the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation....
... [A] court may consider all the circumstances surrounding the suit in awarding fees under section 61.16. Moreover, in situations where a court finds that an action is frivolous or spurious or was brought primarily to harass the adverse party, ... the trial court has the discretion to deny a request for attorney’s fees to the party bringing the suit.

Rosen v. Rosen, 696 So.2d 697, 700-01 (Fla.1997). Rosen has been interpreted as authorizing an award of attorney’s fees against a spouse for “over-litigation,” Zanone v. Clause, 848 So.2d 1268 (Fla. 5th DCA 2003), persisting in litigation when there is “no reasonable prospect of success,” Diaz v. Diaz, 727 So.2d 954 (Fla. 3d DCA 1998), quashed on other grounds, 826 So.2d 229 (Fla.2002), or where the party has engaged in “vexatious and frivolous litigation,” Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999). See Dake v. Kirkley, 767 So.2d 1289 (Fla. 5th DCA 2000) (finding attorney’s fees recoverable under Ro-sen for improper conduct that causes extensive litigation).

We have carefully reviewed the record in this case and conclude that there is no evidence that the former wife engaged in unnecessary or vexatious litigation. To the contrary, it appears that the former husband worked diligently to make a “mountain out of a molehill,” expending time and effort that was grossly disproportionate to the issues and amounts in dispute.

Given the lack of any evidence to support the award of attorney’s fees and costs to the former husband, we reverse the judgment.

REVERSED.

EVANDER and COHEN, JJ, concur.


author: WARNER, J.

text:
    Luis ALSINA and Rita Alsina, Appellants, v. Adam GONZALEZ and Terri Gonzalez, Appellees.
    No. 4D11-195.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.

      Michael Gulisano of Friedland & Associates, P.A., Fort Lauderdale, for appellants.
    Ryan V. Kadyszewski of Linkhorst & Hockin, P.A., Jupiter, for appellees.
   WARNER, J.

Luis and Rita Alsina appeal from the dismissal of their complaint as a sanction for their attorney’s willful failure to comply with a court order. Because the trial court failed to consider all of the Kozel factors in ordering dismissal, we reverse.

The Alsinas filed a complaint in April 2007 against appellees, the Gonzalezes, for adverse possession and injunctive relief involving a boundary dispute between their two properties. In response, the Gonza-lezes asserted counterclaims for slander of title and statutory violation of the building code. Thereafter, the case was noticed for trial, and calendar call was scheduled for April 9, 2009. The Alsinas’ counsel did not appear at the calendar call but was reached by the presiding judge by telephone. The calendar call was rescheduled for October 9, 2009. At that calendar call the Alsinas’ counsel again failed to appear. Counsel contends that he mistakenly believed that the Gonzalezes’ counsel had agreed to ask for a joint continuance.

A calendar call was again rescheduled to March 12, 2010. Once again, the Alsinas’ counsel failed to appear. This time the Gonzalezes made an ore tenus motion to strike the Alsinas’ pleadings, which the trial court granted as a sanction for their counsel’s willful failure to comply with the court’s order requiring attendance at the calendar call. The court also awarded some attorney’s fees to the Gonzalezes for their attorney’s time at the calendar call.

The Alsinas’ attorney immediately filed a motion to set aside the dismissal, arguing that his conduct was not willful but was the result of miscommunication and calendaring errors. He also said that his errors were not the fault of his clients and a less drastic sanction was warranted. After an unrecorded, non-evidentiary hearing, the trial court denied the motion. In its order, the court recited the positions of the parties with respect to the reasons that the calendar calls were missed, the Alsinas’ attorney claiming that they were the result of mistake, and the Gonzalezes’ attorney refuting his explanation. The court found that the Alsinas’ attorney’s explanation was unsupported by the facts. Finding “[flt was well within the Court’s discretion to strike Plaintiffs’ pleadings due to Plaintiffs’ counsel willful, repeated, and persistent violation of the Court’s orders and procedures,” the court denied the motion to set aside the dismissal.

The Gonzalezes thereafter moved for summary judgment on their counterclaims, arguing that because the Alsinas’ pleadings had all been stricken, that included their defense to the counterclaims. The court entered summary judgment, and the Alsinas appeal, claiming that the court erred in striking their pleadings.

While dismissal of a complaint for non-compliance with a court order is subject to an abuse of discretion standard of review, Erdman v. Bloch, 65 So.3d 62, 65 (Fla. 5th DCA 2011) (citing Bank One, N.A. v. Harrod, 873 So.2d 519, 520 (Fla. 4th DCA 2004)), failure to apply the standards for the sanction of dismissal set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), is in itself a basis for reversal and remand for application of those standards. Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004).

In Kozel, the Florida Supreme Court explained that dismissal with prejudice for the failure of the party’s attorney to comply with court orders or deadlines may punish the litigant, rather than the counsel who had been derelict. A fíne, public reprimand, or contempt order might be an appropriate sanction in those situations where the attorney, not the client, was responsible for the error. The court adopted six factors to be considered:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

629 So.2d at 818. The court remanded with directions that the trial court consider those factors.

The court further clarified the application of the Kozel factors in Ham where a trial judge had dismissed a plaintiffs action for willful noncompliance with two court orders. However, prior to the dismissal no previous sanctions had been imposed, nor was there client involvement in the attorney’s failure to obey the court’s orders. Resolving a split in district court opinions, Ham held that litigant involvement in the sanctionable conduct was not the exclusive factor but just one factor that the court must consider in imposing the ultimate sanction of dismissal. Thus, “there may be circumstances involving such misbehavior by counsel in which dismissal is appropriate even absent the litigant’s involvement in an attorney’s misconduct _” 891 So.2d at 498.

Nevertheless, Ham also explained:

[T]he sanction of dismissal in all cases must be a reasonable response to the discovery infractions committed. Although a trial court “unquestionably has power to discipline counsel” for violating court orders, an action should not be dismissed when the malfeasance can be adequately addressed through the imposition of a contempt citation or lesser degree of punishment directly on counsel.

Id. (citation omitted). Consideration of the Kozel factors provides the framework for achieving the balance of the severity of the sanction and its impact on the litigants. Where the trial court does not consider all of the factors, remand for consideration is required. Id. at 500.

The trial court’s original order in this case striking all of the Alsinas’ pleadings was done without any consideration of Ko-zel and without any hearing, and merely after the oral motion to strike was made at calendar call. While the court held a second hearing after the Alsinas moved to vacate the order, neither the original order nor the order denying the motion to strike referred to any consideration of any Kozel factor other than the attorney’s willful noncompliance.

The Gonzalezes argue that an affir-mance is required because the Alsinas have not provided a transcript of the hearing where those factors may have been considered. We disagree that a transcript is necessary where the order is devoid of any consideration of the factors. In fact, no transcript of the sanction hearing was available in Ham, and the order contained language finding willful conduct. Despite this, the supreme court still remanded for the trial court to conduct a Kozel analysis. We conclude that based upon Ham reversal is required for the court to conduct the proper analysis and to make appropriate findings. See also Bennett v. Tenet St. Mary’s, Inc., 67 So.3d 422 (Fla. 4th DCA 2011); Smith v. City of Panama City, 951 So.2d 959 (Fla. 1st DCA 2007).

Reversed and remanded for proceedings in accordance with this opinion.

STEVENSON and CONNER, JJ„ concur.


author: SALTER, J.

text:
    Barbara JOSEPH, Appellant, v. In re the Estate of Gerard JOSEPH, Appellee.
    Nos. 3D11-2106, 3D11-1250.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Rehearing Denied April 12, 2012.

      Leon E. Sharpe, Miami, for appellant.
    Newman & Tempkins, and Harry Temp-kins, Miami Beach, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

These consolidated appeals arise out of competing claims by a former wife and the estate of her former husband, as longtime cotenants of the former marital home. We affirm the probate court’s determinations regarding a fair rental amount payable by the former wife to the estate, but we also conclude that the obligation to pay rent is intertwined with the former wife’s claims for fourteen years’ worth of expenses paid by her (the period commencing with the dissolution of marriage and concluding in 2010 upon the death of the former husband) while in exclusive occupancy of the residence. We therefore reverse the judgment insofar as it may have been immediately enforceable, and we remand the matter for further proceedings.

I. Facts

The former wife and former husband purchased and occupied a residence in Miami-Dade County as husband and wife. In 1986, the former husband moved out of the residence. In 1996, their marriage was dissolved. Since that time, the former husband and former wife held title as tenants in common, each with a 50% undivided interest, and the former wife had exclusive occupancy.

According to a death certificate filed by the former husband’s daughter (and now personal representative of his estate), he died in the January 2010 earthquake in Haiti. In the circuit court probate case, the personal representative filed a motion on behalf of the estate to require the former wife to pay rent. The former wife filed a motion “to determine whether or not the ex-wife, Barbara Joseph, is entitled to any setoffs for monies paid towards the mortgage, maintenance and taxes on the property.”

In February 2011, the probate court received evidence from the estate’s expert witness on the rents issue. Because there were objections regarding the adequacy of notice, the probate court invited both sides to submit memoranda regarding the set-offs claimed by the former wife. That process also afforded the former wife an opportunity to offer her own evidence regarding a fair rent. The parties agreed that the residence had a fair market value of $160,000 and was held free and clear of any mortgage.

The former wife offered no contrary evidence and sought no further evidentiary hearing regarding a fair rental amount, but instead argued in her memorandum of law that she had expended $313,063 on the property since the date her exclusive occupancy began, with no reimbursement for any part of those expenses by the former husband. The former wife claimed a credit for 50% of that amount, $156,531 in credit or setoffs, against any alleged rent owed after the former husband’s death, and against the estate’s 50% interest in the residence (by agreement, each party’s interest was worth approximately $80,000).

The probate court then heard argument on these issues in April 2011. A week after the hearing, the court entered an order finding that: the reasonable rental value of the property is $2,100 per month; the estate is entitled to one-half of that amount, $1,050 per month, effective as of February 2010; and judgment for the estate’s share of past-due rent ($15,750) was to be entered if not paid within 45 days. The former wife moved for rehearing and reconsideration. A judgment for the past-due rent and an order denying rehearing were entered, and this appeal followed.

II. Analysis

A. Cotenancy and the Obligation to Pay Rent

The estate’s right to a fair rental following the former husband’s death, based on the estate’s undisputed 50% interest in the residence, rests on settled Florida law. The former wife’s rejection of the estate’s demand for rent, and the adversity of the former wife’s claim of exclusive possession of the estate’s property, are tantamount to an ouster, such that the former wife became liable for one-half of the rental value. Bailey v. Parker, 492 So.2d 1175, 1177 (Fla. 1st DCA 1986). Before the death of her cotenant, however, the former wife’s exclusive possession was entirely permissive, not adverse, and she had no such obligation.

The former wife’s argument regarding lack of notice of the estate’s motion to collect rent is without merit. Although there may have been some issue regarding the receipt of the initial notice of hearing, any such shortcoming was remedied when the probate court allowed additional time for the former wife to file a memorandum of law and offer evidence of a fair market monthly rental amount. We thus affirm the court’s determinations regarding the obligation to pay, and amount of, monthly rent commencing as of February 2010.

B. Credits and Setoff for Charges and Expenses

The former wife’s arguments with respect to an entitlement to setoff are more difficult to address. There is no question that, upon partition and sale of the residence, the former wife is entitled to credits for one-half of those “charges upon the property” that were borne by her and not by her cotenant. Tinsley v. Tinsley, 490 So.2d 205, 207 (Fla. 3d DCA 1986) (“Thus, a person who makes mortgage payments on a home jointly held with the ex-spouse as tenants in common is entitled to a credit for the ex-spouse’s share of the ownership expenses.”). Unless the final judgment of dissolution of marriage expressly imposes upon the ex-spouse in possession the obligation to make all such payments on the property without receiving a credit in return (and with a basis in the record for doing so), this right to a credit arises by operation of law. Id.

While the right to a credit for mortgage principal reductions attributable to one co-tenant’s payments (resulting in increased equity benefiting both cotenants) is more obvious, Florida cases have broadened the scope of such credits to include “property expenses” generally. Goolsby v. Wiley, 547 So.2d 227, 230 (Fla. 4th DCA 1989) (rejecting former husband’s claim for a “fair rental” setoff against former wife’s claim “for reimbursement from the proceeds of a sale of the property for necessary and proper expenses incurred in the preservation and protection of the property”). In Wertheimer v. Wertheimer, 487 So.2d 90, 91 (Fla. 3d DCA 1986), this court held that such credits should be provided not only for mortgage payments, but also for “one-half of the payments for interest, insurance and taxes” by a former spouse granted exclusive occupancy and making all such payments.

Although the property has not yet been partitioned or sold and the probate court has not conducted an evidentiary hearing fixing the amount of the former wife’s allowable credits, the tabulations in the record indicates that such credits may exceed the estate’s otherwise-agreed equity ($80,000) in the residence. The wife has proffered evidence, and the estate has not disputed, that the former wife was the exclusive payor on the mortgage from 1986 until it was paid off a few years ago, and that the former wife also paid for other substantial expenses of protecting, maintaining, and improving the residence.

C. Timing and Limitations Issues

It will not suffice, however, to say that there may be some entitlements to credits in the future. Any such right to reimbursement on the part of the former wife is postponed until the property is actually sold. Tinsley, 490 So.2d at 207. The occupant’s obligation to pay fair market rent for the continued use of the estate’s property, on the other hand, is payable during the administration of the estate and before partition or sale.

The estate also raises an argument that the former wife’s claim for credits has been extinguished, or at least reduced, by virtue of (a) the probate statutes of non-claim, sections 733.702 and 733.710, Florida Statutes (2010), or (b) the applicable statutes of limitation. We reject this argument. In Coba v. Craig, 881 So.2d 733 (Fla. 3d DCA 2004), we concluded that a claim and liability arising after the decedent’s death is not subject to the probate code’s statute of nonclaim. In this case, the event which will trigger the former wife’s elaim to credits has not yet occurred (the partition and sale of the residence, in which proceeding the former wife’s recovery cannot exceed the proceeds otherwise payable to the estate). See also Brown v. Brown, 732 So.2d 1169, 1170 (Fla. 1st DCA 1999). And for essentially the same reason, the wife’s entitlement to credits and a setoff for her otherwise time-barred disbursements, and any partition action, is not subject to the statute of limitations, section 95.11, Florida Statutes (2010). McFall v. Trubey, 992 So.2d 867, 869-70 (Fla. 2d DCA 2008).

But this brings us back to the central problem arising from this unique record: why should the former wife be compelled to pay a fair market rent for a 50% cotenant’s interest that may turn out to be “out of the money” on sale? The probate judge addressed this problem when he recognized that the two claims — that of the estate for rent, and that of the former wife for credits arguably exceeding the value of the estate’s interest in the home — were “intertwined.” We agree.

We therefore reverse the final judgment for payment of rent, to the extent that it may not yet have been collected, and remand in order that the former wife’s or estate’s partition claim may be advanced, any applicable credits determined in an evidentiary hearing, and the proceeds netted and reduced to judgment. Otherwise, enforcement of the existing judgment for rent may dispossess the former wife and her elderly mother before her equities (the value of her 50% interest plus any credits) can be realized. These intertwined claims should not be determined and enforced on a piecemeal basis.

III. Conclusion

It is unfortunate that counsel and the parties were unable or unwilling to heed the probate court’s gentle admonition to work on a business solution to this matter. The parties agreed that the home is worth approximately $160,000 and that the decedent neither lived in it nor paid any expenses for it after 1986. Attorney’s fees only reduce any rent or net proceeds recoverable by the estate and the former wife.

Because no such resolution has occurred, the probate court correctly heard and decided the estate’s motion for payment of rent, and we affirm that aspect of the judgment and orders under review. We reverse in part and remand, however, so that enforcement of the existing judgment for rent can await final resolution of the intertwined partition credit and setoff claims.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . § 689.15, Fla. Stat. (1996).

      . At some point, allegedly in 2005, the former wife’s mother became a second occupant. The former husband never moved back in, but continued to pick-up mail at the residence, sporadically, until his death.

      . The probate court found, in an order of March 2, 2011, and on the basis of a Haitian death certificate filed with the court, that the former husband was deceased. Four weeks later, the former wife filed a petition to revoke probate and dismiss proceedings in which she challenged the authenticity and admissibility of the death certificate. The probate court later required, and the estate filed, a certified translation of the document.

      . An exception arises when the tenant in exclusive possession of property owned as tenants in common receives rents or profits, in which case the tenant receiving that income is accountable to the cotenant. Bailey, 492 So.2d at 1177. The estate argues that the former wife received part or all of her mother’s Social Security check each month as rent, but that issue has not yet been heard or determined in the probate court.

      . This occurred during the February 2, 2011, hearing.

      . One party or the other should initiate the partition action promptly after remand, and both parties should prosecute it diligently or settle the matter. Otherwise, the estate and the residence are likely to be consumed by legal fees. To the extent that the probate court may already have ordered a sale of the property, the former wife's credits and the amount of net proceeds payable to each party can be determined at an evidentiary hearing.


author: WELLS, Chief Judge.

text:
    Juan Luis GUERRERO and Patricia Guerrero, Appellants, v. CHASE HOME FINANCE, LLC., Appellee.
    No. 3D11-1404.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.

      Carrillo & Carrillo and Felix R. Carrillo, for appellants.
    Marshall C. Watson and Robert R. Edwards, Ft. Lauderdale, for appellee.
    Before WELLS, C.J., and RAMIREZ, and LAGOA, JJ.
   WELLS, Chief Judge.

Juan Luis Guerrero and Patricia Guerrero appeal from a final judgment of foreclosure complaining of a number of technical deficiencies in the record below. Faced with a record that may best be described as a “mess,” we conclude that at least one of these “technicalities” mandates reversal.

This action was commenced by Chase Home Finance, LLC as the “present designated holder of [a] note and mortgage” executed by the Guerreros. Copies of the promissory note at issue in the amount of $316,000 made payable to Freedom Mortgage Corporation and the mortgage securing that note in favor of “ ‘MERS’ [Mortgage Electronic Registration Systems, Inc.] ... acting solely as a nominee for Lender and Lender’s successors and assigns,” were attached to the complaint. The Guerreros filed their Answer and Affirmative Defenses, admitting to entering into the loan and to defaulting, but indicating they were without knowledge of the relationship between Chase and the original lender, and demanding “strict proof thereof.”

On April 27, 2011, this matter came on for trial. When the proceedings began, Chase’s counsel informed the court that the original note and mortgage at issue could not be located but that his law firm’s records custodian was present with an affidavit regarding these lost documents. The Guerreros objected arguing that no lost note claim had been alleged. The court reserved ruling on the Guerreros’ objection and proceeded to take testimony on the foreclosure claim.

As to this claim, Chase called a representative from IBM, Lender Business Process Services Company, who testified that IBM was now the servicing agent for Fannie Mae, the most recent assignee of the Guerrero note and mortgage. According to this witness, because no payments had been made by the Guerreros since August 1, 2007 on the $316,000 note and mortgage at issue, the Guerreros were in default thereby entitling Chase/IBM/Fannie Mae (for convenience “Chase” throughout) to a foreclosure judgment.

The second witness called by Chase was the records custodian/document supervisor at the law firm now representing Chase in the foreclosure action. The Guerreros promptly objected to this witness because he was not listed on Chase’s witness list. When Chase’s counsel advised the court that this witness was going to testify that the mortgage and note were missing for the purpose of reestablishing them, the Guerreros objected again, arguing that “there is no lost note count.”

At this juncture, Chase’s counsel asked the court to permit it to amend its pleadings to conform to the evidence it was going to present, to which the court responded:

THE COURT: That we would do at the conclusion of the case, not as a preemptive motion.

The records custodian was permitted to testify.

According to this witness, the original note and mortgage had been delivered to the law firm where he worked (the firm representing Chase) and had been placed in a limited access safe. He also testified that despite these precautions, when he went to look for the mortgage and note the day before the trial began, they were not in the safe and search as he might he had not been able to locate them.

In conjunction with this testimony, this witness proffered an affidavit in which he represented that “[Chase] ... holds the Defendants] obligor (s) of the note harmless and agrees to indemnify them from any loss they may incur by reason of a claim by any other person/entity to enforce the lost note.” However, on cross examination the witness admitted that he neither knew what this representation meant nor knew if Chase (much less IBM/Fannie Mae) agreed to it:

Q. [BY COUNSEL FOR CHASE]: Is it true that, according to this affidavit ... the plaintiff is willing to indemnify ... ?
A. I’m not sure what you mean by that.
THE COURT: Counselor’s cross examination was getting right to the heart of it. If this note is found, and after this proceeding ... would the plaintiff be in a position to indemnify anybody for that note that was lost, now found? ...
[A.]: I apologize, I’m not sure what the word “indemnify” means.
Q. [BY COUNSEL FOR THE GUERREROS]: By the way, are you authorized to indemnify the defendants by the servicer or the holder of this note? Can yon make that statement in this courtroom?
A. Again, I don’t really understand exactly.
Q. Did you understand what you were signing?
A. I understood the parts about the — that have to do with the searches that we did and when the notes came in. I guess my answer is, No. [This statement] is not completely understood.

The affidavit was stricken. There was no other testimony on the subject of indemnification.

At the close of the testimony, the Guerreros unsuccessfully requested entry of judgment in their favor claiming that Chase could not prevail (1) because Chase could not surrender the original mortgage and note and (2) because Chase could not reestablish the mortgage and note without having asserted a lost note claim and without having introduced sufficient evidence to satisfy the requirements of such a claim. See § 673.8091(2), Fla. Stat. (2010) (stating “[t]he court may not enter judgment in favor of the person seeking enforcement [of a lost, destroyed, or stolen instrument] unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument”). A final judgment of foreclosure nonetheless was entered.

The Guerreros repeat the same arguments they made below here. We agree with their argument that in this case no foreclosure could be ordered unless the mortgage and note were reestablished. See Emerald Plaza West v. Salter, 466 So.2d 1129, 1129 (Fla. 3d DCA 1985) (“Agreeing with appellant that the trial court erred in granting foreclosure of a mortgage without requiring either production of the original promissory note and assignment of mortgage or reestablishment of those documents.”) (Citations omitted). We cannot, however, agree that the court below was without authority to allow Chase to amend to assert a lost note claim. While it is well established that a trial court lacks jurisdiction to adjudicate matters outside the pleadings, Rule 1.190(b) of the Florida Rules of Civil Procedure expressly authorizes amendments to conform to the evidence when an unpled matter has been tried — even over objection — when “the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.” Fla. R. Civ. P. 1.190(b); Instituto Patriotico Y Docente San Carlos, Inc. v. Cuban Am. Nat’l Found., 667 So.2d 490, 492 (Fla. 3d DCA 1996) (“[T]he law in Florida is well established that a trial court lacks jurisdiction to entertain and adjudge matters which have not been the subject of proper pleadings and notice.”); see also Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957) (same); Freshwater v. Vetter, 511 So.2d 1114, 1115 (Fla. 2d DCA 1987) (same).

The sole purpose of the instant action was to foreclose a mortgage securing a promissory note (copies of which were attached to the complaint) on which the Guerreros concededly had made no payment for years. The undisputed testimony was that IBM was the current servicing agent for Fannie Mae the current owner and holder of these instruments and that the Guerreros were in default. Since the evidence confirmed the current owner/holder’s entitlement to foreclose the mortgage attached to the complaint, submission of the original documents or alternatively reestablishment of them was all that remained. In light of the undisputed testimony that the originals of these documents had been received by the law firm representing Chase, stored carefully by that firm, but ultimately misplaced, we see no error in allowing Chase to amend to state a claim to reestablish these lost documents.

We cannot, however, agree that the burden of reestablishing these documents was met. Other than representations made in the records custodian’s stricken affidavit, there is no evidence that the Guerreros will be “adequately protected against loss that might occur by reason of a claim by another person to enforce the[se] instrument[s]” as required by section 673.3091 of the Florida Statutes. See § 673.3091(2), Fla. Stat. (2010).

We therefore reverse the final judgment of foreclosure and remand for reestablishment of the lost mortgage and note, this time on a proper pleading, naming the appropriate parties, and upon competent evidence — all of which we believe may be accomplished expeditiously. We do not, by virtue of this determination, invite frivolous claims or the addition of frivolous defenses and do not preclude imposition of sanctions authorized by section 57.105 of the Florida Statutes, as a consequence of same, if appropriate.

Reversed and remanded with instructions.

RAMIREZ, J., concurs in result only.

      . An Assignment of Mortgage evidencing MERS' assignment of its interest as servicing agent for the lender to Chase subsequently was filed of record.

      . Section 673.3091 of the Florida Statutes governing reestablishment of lost instruments provides:
      Enforcement of lost, destroyed, or stolen instrument
      (1) A person not in possession of an instrument is entitled to enforce the instrument if:
      (a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
      (b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
      (c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
      (2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.