author: SHEPHERD, J.

text:
    MOFFATT & NICHOL, INC., etc., Appellant, v. B.E.A. INTERNATIONAL CORP., INC., etc., Appellee.
    No. 3D08-2089.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rehearing and Rehearing En Banc Denied Dec. 16, 2010.

      Bush Ross and A. Christopher Kasten, II, Tampa, for appellant.
    Fowler White Burnett, Ronald G. Nei-wirth and Helaine S. Goodner, Miami, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal of a non-final order denying a judgment creditor’s Amended Motion for Proceedings Supplementary and Motion for Issuance of Writ of Execution, pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). We have jurisdiction. The question presented is whether one particular creditor has standing to pursue derivative claims, alleging loss or damage to a person or entity, against a debtor company, which has made a statutory assignment for the benefit of creditors pursuant to Chapter 727 of the Florida Statutes after the assignment has been made. For the reasons set forth below, we answer the question in the negative.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a thwarted effort by appellant, Moffatt & Nichol, Inc., etc. (Moffatt), to obtain a writ of execution and conduct proceedings supplementary in furtherance of recovering $179,926.46 due it under the terms of an Amended Final Judgment rendered in its favor and against appellee, B.E.A. International Corporation, Inc., etc. (BEAI), on March 25, 2008, as a result of BEAI’s breach of the payment terms of an architectural services agreement between the two entities (“the Contract Case”). On April 29, 2008, Moffatt executed a judgment lien certificate and sent it to the Secretary of State for recording. On that same date, BEAI made an Assignment for the Benefit of Creditors, pursuant to Chapter 727 of the Florida Statutes, to Michael Phelan, a fiduciary appointed by BEAI for the purpose of liquidating BEAI’s assets for the benefit of all creditors. See § 727.101, Fla. Stat. (2008). Two days later, Michael Phelan timely filed a separate Petition Commencing Assignment for The Benefit of Creditors in the circuit court to facilitate the performance of his duties (“the Assignment Case”). See § 727.104, Fla. Stat. (2008).

Two weeks after that, on May 17, 2008, Moffatt filed a Motion for Proceedings Supplementary in the Contract Case against the assignor, BEAI, and a related third party, BEA Architects, Inc. (“BEAA”), which Moffatt alleges miraculously appeared to continue the business of BEAI in all respects — same location, employees, office equipment, telephone numbers, website, and President (Bruno Ramos) with the same $250,000 salary. On June 25, 2008, over Moffatt’s objection, the trial court in the Assignment Case granted Assignee Michael Phelan’s request for approval of a contract for the sale of certain specified assets of BEAI to BEAA, free and clear of all liens and encumbrances, including the judgment lien held by Mof-fatt, for the sum of $25,000. The order acknowledged Moffatt’s position that the filing of the petition did not compromise Moffatt’s right to engage in proceedings supplementary in the Contract Case.

Two days later, Moffatt filed an Amended Motion for Proceedings Supplementary and to Implead Third Parties in the Contract Case. The motion sought to add Art, Design & Construction, Inc. (“ADC”), River Property, a joint venture (“River Property”), 4111 Lejeune Road, Inc. (“4111 Le-jeune Road”), Ahern-Plummer, Inc. (“Ahern-Plummer”), Addition Acquisitions, LLC (“Addition Acquisitions”), Bruno Ramos and his wife, Maritz Ramos, as additional third-party defendants. Mof-fatt alleged that BEAA and the proposed additional corporate defendants were all majority owned by the Ramoses, and the Assignment for the Benefit of Creditors was nothing more than an elaborately planned fraudulent transfer scheme, orchestrated and executed by BEAI’s handpicked statutory assignee for the purpose of shielding BEAA from any successor liability claims the order approving the sale might offer. Moffatt further argued, based on but brief discovery, that it appeared BEAI failed to schedule significant assets on the Assignment, which were held by certain of the additional defendants as alter egos of BEAI, and BEAI had transferred hundreds of thousands of dollars in cash to ADC the day after the Assignment was executed, in contravention of section 726.106 of Florida’s Uniform Fraudulent Transfers Act. Finally, Moffatt argued it was entitled to pursue all of these claims in its own name and capacity, separate and distinct from Michael Phelan, the Assign-ee. It is on this point the trial court disagreed and on which we affirm.

ANALYSIS

Moffatt’s principal argument on appeal is that the trial court in the Contract Case erred by failing to appreciate that Moffatt does not seek to reach any assets in the “possession, custody or control of the as-signee” in the Assignment Case within the meaning of Chapter 727 of the Florida Statutes, but only property in the hands of entities not parties to that case — i.e., the proposed additional third-party defendants named in the Amended Motion for Proceedings Supplementary. In support of its argument, Moffatt directs our attention to section 727.105 of the Florida Statutes (2008), which states, in relevant part, that “[ejxcept in the case of a consensual lien-holder enforcing its rights in personal property or real property collateral, there shall be no levy, execution, attachment or the like in respect of any judgment against assets of the estate in the possession, custody, or control of the assignee.”

In former times, Moffatt’s argument might have had merit. However, one year before the execution of the Assignment for the Benefit of Creditors in this case, Florida’s legislature adopted its most extensive revision of Chapter 727, Florida Statutes, in a decade. See Ch. 2007-185, Laws of Fla. (eff. July 1, 2007). In this revision, the definition of “asset” in section 727.103(1), was expanded to include, for the first time, the phrase, “claims and causes of action, whether arising by contract or tort.” As amended, the definition now reads:

“Asset” means a legal or equitable interest of the assignor in property, which includes anything that may be the subject of ownership, whether real or personal, tangible or intangible, including claims and causes of action, whether arising by contract or in tort, wherever located, and by whomever held at the date of the assignment, except property exempt by law from forced sale.

§ 727.103(1), Fla. Stat. (2008) (emphasis added). In addition, the standard assignment form, found in section 727.104(b), corresponds to the statute by specifically including “claims and choses in action.” See § 727.104(b), Fla. Stat. (2008). Thus, under the terms of Florida’s Assignment for the Benefit of Creditors law as it presently exists, the assignor conveys to the assignee all of its assets as defined in section 727.103(1), except such assets as are exempt by law from levy and sale under an execution. Collectively, these assets create an “estate.” See § 727.103(9), Fla. Stat. (2008). The assignee, in turn, is required to take possession of, protect and preserve, and liquidate the assets of the estate and to convert the estate to money. See §§ 727.104(l)(b), -108, Fla. Stat. (2008). Under the statutory scheme as it now exists, only an assignee has standing to pursue fraudulent transfers, preferential transfers or other derivative claims.

Moffatt places primary reliance for its position that it has an independent right to pursue derivative claims against the proposed additional third-party defendants on Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987 (Fla. 4th DCA 1998). Seminole Boatyard is inapposite. In Seminole Boatyard, Seminole obtained a $746,998 judgment for unpaid rent against its commercial tenant, Florida Atlantic Marine (“FAM”), after which FAM filed for bankruptcy. Id. at 988. Seminole then filed a separate action against Robert Christophe, the president of FAM, alleging he had diverted funds from FAM before the bankruptcy filing, and also had “intentionally used FAM to ‘break’ George Whitten, the president of Seminole, and force Seminole to lose its property through foreclosure.” Id. In the meanwhile, Christophe purchased the bankruptcy estate’s claims against himself, obtaining a general release from the trustee in bankruptcy that included all rights, claims and causes of action against him that accreted to the bankruptcy trustee by virtue of the filing. Id. Christophe then successfully deployed the release as a complete bar on summary judgment in the separate action brought by Seminole on the theory that Seminole’s claim was among those accreted. Id. at 989. In its order approving Christophe’s claims purchase, the bankruptcy court expressly declined to opine concerning whether Seminole’s claim had, in fact, been released. Id. at 988.

On Seminole’s appeal from the trial court’s adverse summary decision, the Fourth District Court reversed, relying principally on E.F. Hutton & Co. v. Hadley, 901 F.2d 979 (11th Cir.1990), which involved a negligence claim against a broker, and which held that “nothing in the Bankruptcy Code authorizes a trustee to collect money owed to a creditor of the estate, but not to the estate.” Seminole Boatyard, 715 So.2d at 989 (citing E.F. Hutton, 901 F.2d at 986). Based upon E.F. Hutton, the court found that Seminole, not the bankrupt estate, was the real party in interest to seek to pierce FAM’s corporate veil and assert an alter ego claim or such other claims as existed for unpaid rent as against Christophe personally. Seminole Boatyard, 715 So.2d at 990. In short, the district court of appeal concluded that Seminole’s action was for money owed it as a distinct creditor and not to the estate as a whole.

The case before us is the obverse of Seminole Boatyard. Unlike Seminole in its case, Moffatt is not trying to collect money owed to it via an independent claim of misbehavior. Moffatt makes no allegation that any one of the proposed additional third-party defendants against whom it wishes to proceed has caused it a particularized harm separate and distinct from the detriment that may have befallen any other creditor of the assignment estate. Instead, Moffatt’s proposed supplemental proceeding is nothing more than a collection action for the purpose of assembling assets to satisfy its own judgment. Since at least 2007, the right to pursue such “claims[,] causes of action” and “dioses in action” has resided solely in a duly appointed assignee for the benefit of all creditors upon the appointment of the as-signee.

We acknowledge Moffatt’s concern that the Assignment for Benefit of Creditors statute may offer a larger window for collusion than might appear to be the case in a bankruptcy proceeding since, under the assignment statute as it exists, the assign- or in an Assignment for the Benefit of Creditors action chooses the assignee. However, this concern is neither expressly included among Moffatt’s points on appeal in this case, nor the true thrust of the argument Moffatt makes to us. We do note, however, that the assignee, upon appointment, is a fiduciary that is required to post a bond, the sufficiency of which is challengeable by any interested party, who must be given notice of the proceeding.

In the final analysis, Moffatt’s stratagem is an impermissible end-run around the Assignment for the Benefit of Creditors statute, and an improper attempt to get to the head of the line, in front of all the other creditors of BEAI, in violation of the spirit, if not the letter, of the Assignment for the Benefit of Creditors statute. See In re Prime Motor Inns, Inc., 135 B.R. 917, 920 (Bankr.S.D.Fla.1992) (“To grant individual creditors ... the right to prosecute avoidance actions ... would unfairly enable individual creditors to pursue their own parochial or insular interests, to the detriment of all other creditors.”). We hold that, like a bankruptcy trustee, an assignee for the benefit of creditors has the exclusive authority to pursue fraudulent transfers and other “dioses in action” for the benefit of all creditors.

Affirmed.

      . Under the decisional law of this district, the issuance of a valid writ of execution and its return unsatisfied are jurisdictional prerequisites for proceedings supplementary. See § 56.29, Fla. Stat. (2008); Mejia v. Ruiz, 985 So.2d 1109, 1112 (Fla. 3d DCA 2008).

      . 4111 Lejeune Road, Ahern-Plummer, and Addition Acquisitions are joint venture partners in River Property.

      . A "[cjonsensual lienholder” is defined in Chapter 727 as "a creditor that has been granted a security interest or lien in personal property or real property of the assignor prior to the date on which a petition is filed with the court and whose security interest or lien has been perfected in accordance with applicable law." § 727.103(6), Fla. Stat. (2008). In contrast to the analogous automatic stay provision of the United States Bankruptcy Code, see 11 U.S.C. § 362(a) (2008), the filing by a debtor of an Assignment for the Benefit of Creditors does not automatically stay the enforcement by a consensual lienholder of its legal rights in the security. See § 727.105, Fla. Stat. However, Moffatt is not a consensual lienholder within this section.

      . This language also appears in the version of section 727.104(b) prior to the 2007 revisions. See § 727.104(b), Fla. Stat. (2006).

      . This change brings the administration of estates under Florida’s Assignment for the Benefit of Creditors law into conformity with the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532. For more than fifty years, it has been settled law in bankruptcy that only a bankruptcy trustee has standing to bring derivative claims. See, e.g., In re Gen. Dev. Corp., 179 B.R. 335 (S.D.Fla.1995) (finding derivative claims are among the assets of an estate, which only the trustee has standing to prosecute). The same rule applies to preferential and fraudulent transfers. See 11 U.S.C. §§ 547(b), 548(a); In re Curry & Sorensen, Inc., 57 B.R. 824, 828-29 (B.A.P. 9th Cir.1986) ("An action to set aside a fraudulent transfer must be brought in the name of the bankruptcy estate as the real party in interest.”); In re Fritz, 88 B.R. 434, 435 (Bankr.S.D.Fla.1988) (holding pursuant to 11 U.S.C. sections 544(b) and 548(a) of the Bankruptcy Code, a fraudulent transfer claim is "available only to a bankruptcy trustee, not to a creditor”); In re Davidson Lumber, 19 B.R. 871 (Bankr.S.D.Fla.1982) (finding petitioning creditors lacked standing to challenge transfer as fraudulent or preferential because such statutory remedies could be asserted only by a bankruptcy trustee or debtor-in-possession).

      . Citing to Biloxi Casino Corp. v. Wolf, 900 So.2d 734 (Fla. 4th DCA 2005), and Continental Cigar Corp. v. Edelman & Co., 397 So.2d 957 (Fla. 3d DCA 1981), Moffatt also argues the trial court had no discretion to deny proceedings supplementary to implead third parties. Although Biloxi states that "[u]pon a showing of the statutory prerequisites, the court has no discretion to deny the motion,” 900 So.2d at 734, Biloxi did not address any of the issues presented here. Continental Cigar is irrelevant for the same reason. Moffatt, however, failed to cite Arellano v. Bisson, 847 So.2d 998 (Fla. 3d DCA 2003), in which this Court affirmed the trial court’s denial of a judgment creditors' motion for proceedings supplementary and to implead a third party because the property the judgment creditors wished to attach was not property that could be reached to satisfy a debt. The same is true in this case.


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Kathleen N. LEIDER, Appellant, v. Jack S. LEIDER, Appellee.
    No. 5D08-2136.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2010.
    Rehearing Denied Dec. 8, 2010.
    Shannon McLin Carlyle and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellee.
   ON MOTION FOR REHEARING

SAWAYA, J.

After this court issued its opinion in Leider v. Leider, 35 Fla. L. Weekly D852 (Fla. 5th DCA Apr.16, 2010), Appellee filed a Motion for Rehearing and/or Clarification and Appellant filed a Motion for Clarification. While those motions were pending in this court, the Florida Supreme Court rendered its decision in Kaaa v. Kaaa, — So.3d —, 2010 WL 3782031, 35 Fla. L. Weekly S521 (Fla. Sept. 30, 2010), which approved the decision in Stevens v. Stevens, 651 So.2d 1306 (Fla. 1st DCA 1995) — a decision that we certified conflict with in our Leider opinion. We note, parenthetically, that we also certified conflict with the decision of the Second District Court in Kaaa v. Kaaa, 9 So.3d 756 (Fla. 2d DCA 2009), quashed, — So.3d —, 35 Fla. L. Weekly S521 (Fla. Sept. 30, 2010).

In light of the Florida Supreme Court’s decision in Kaaa, we grant the Motion for Rehearing, withdraw our prior opinion, and substitute this opinion in its place. We affirm that part of the final judgment holding that the funds spent for repairs were not improvements that contributed to the value appreciation of the house. We reverse that part of the final judgment awarding the wife $27,481 as a marital asset and remand for further proceedings consistent with Kaaa.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER and EVANDER, JJ., concur.


author: PER CURIAM.

text:
    Cecil Edwin PYLANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2008.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2010.
    Rehearing Denied Dec. 7, 2010.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Cecil Edwin Pylant, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Cecil Edwin Pylant appeals the judgment and sentence entered after he pleaded guilty to attempted sexual battery. We affirm, but remand for the trial court to strike one order.

When Mr. Pylant entered his plea, the trial court entered an order finding him to be a violent felony offender of special concern who poses a danger to the community. There is no dispute that this order was incorrect. Mr. Pylant brought this error to the trial court’s attention by filing a motion to correct sentencing error. The trial court granted the motion and removed this designation from the judgment and sentence and order of probation; however, the trial court failed to strike the order. Accordingly, we affirm the judgment and sentence but remand for the trial court to strike the order finding him to be a violent felony offender of special concern who poses a danger to the community.

Affirmed; remanded with instructions to strike the order.

ALTENBERND, WALLACE, and LaROSE, JJ., Concur.


author: ROBERTS, C.J., Associate Judge.

text:
    LAKEVIEW RESERVE HOMEOWNERS, etc., et al., Appellant, v. MARONDA HOMES, INC., et al., Appellee.
    No. 5D09-1146.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.

      Robyn Severs Braun and Patrick C. Howell of Taylor & Carls, P.A., Altamonte Springs, for Appellant.
    Thomas R. Slaten, Jr., and John C. Pal-merini of Larsen & Associates, P.A., Orlando, Amicus Curiae, Community Associations Institute, Mid Florida Chapter, in support of Appellant.
    Steven L. Brannock of Brannock & Humphries, Tampa, Scott Johnson and Heather Pinder Rodriguez of Holland & Knight LLP, Orlando, for Appellee Maron-da Homes, Inc. of Florida.
    Stephen W. Pickert and Anthony R. Ko-valcik of Moye, O’Brien, O’Roarke, Pickert & Martin, LLP, Maitland, for Appellee T.D. Thomson Construction Co.
    Nicholas A. Shannin of Page, Eichen-blatt, Bernbaum & Bennett, P.A., Orlando, and Keith C. Hetrick, Tallahassee, Amicus Curiae, Florida Home Builders Association, in support of Appellee.
   ROBERTS, C.J., Associate Judge.

Lakeview Reserve Homeowners Association, Inc. (“the Association”) appeals from the final summary judgment entered in favor of Maronda Homes, Inc. and T.D. Thomson Construction Company (collectively “the Developer”) . The sole issue for our review is whether a homeowners association has a claim for breach of the common law implied warranties of fitness and merchantability, also referred to as a warranty of habitability, against a builder/developer for defects in the roadways, drainage systems, retention ponds and underground pipes in a residential subdivision. We hold that it does and, accordingly, reverse.

The Developer developed a residential subdivision in Orange County, Florida, and incorporated the Association to serve as the homeowners association of that subdivision. In developing the subdivision, the Developer performed certain site work, including construction of the stormwater drainage system and private roadways. During construction of the subdivision, the Developer retained control of and managed the subdivision. Ultimately, the Developer transferred all control of the subdivision to the individual lot owners and the Association.

The Association filed a complaint against the Developer for breach of the implied warranties of fitness and merchantability based on latent defects in the subdivision’s common areas. Specifically, it claimed that the roadways, retention ponds, underground pipes, and drainage systems throughout the subdivision were defectively constructed. The Developer filed a motion for summary judgment, arguing that the common law implied warranties of fitness and merchantability do not extend to the construction and design of private roadways, drainage systems, retention ponds and underground pipes, or any other common areas in a subdivision, because these structures do not immediately support the residences. The trial court agreed and entered summary judgment against the Association.

In entering summary judgment, the trial court relied upon Conklin v. Hurley, 428 So.2d 654 (Fla.1983), and Port Sewall Harbor & Tennis Club Owners Association, Inc. v. First Federal Savings and Loan Association of Martin County, 463 So.2d 530 (Fla. 4th DCA 1985). We review the trial court’s order de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). The Developer urges us to likewise rely on Conklin and Port Sewall, and to uphold the trial court’s decision. We decline to do so, and, instead, hold that there is a common law warranty of habitability applicable in the case at bar. Although we are constrained by the holding in Conklin, it is our opinion that the facts of the instant case are distinguishable from the facts in Conklin. We, nevertheless, reach a different conclusion than our sister court in Port Sewall, which applied the holding in Conklin to a similar set of facts as presented here. We, therefore, certify conflict with the Fourth District Court of Appeal.

A review of the history of the application of implied warranties for habitability is instructive. For centuries, caveat emptor, “let the buyer beware,” was generally the rule of law. This served well at a time when parties were thought to usually be on equal footing and neither had a significant advantage in discerning potential defects to goods sold in the marketplace. This theory was particularly persistent in land sales, where a buyer could, and wisely should, inspect the land to ensure it was suitable for the buyer’s intended use. The notion of caveat emptor initially carried over into the construction and sale of homes and commercial buildings. Buyers could still inspect the land, and early building construction and land development was relatively simple.

As mass production of goods became more complicated and more common, courts began to impose liability on manufacturers and sellers, who were in a superi- or position to know of, or discover, defects than were the consumers. See, e.g., Manheim v. Ford Motor Co., 201 So.2d 440 (Fla.1967). Following this trend, courts have shown willingness to reject the notion of caveat emptor, and to impose liability on developers and sellers of realty. This movement away from caveat emptor is due in large part to today’s complex development climate. Permitting, site planning and site work, and construction of subdivisions and planned unit developments are significantly more complex than ever before, and a homebuyer is no longer on a level playing field with a builder/developer, as was once the case.

In Florida, the first case to extend the implied warranties of fitness and merchantability to purchasers of new homes was Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972) (hereinafter Gable I). There, the court quoted with approval the following language from Wells, Implied Warranties in the Sale of New Homes, 28 U. Fla. L.Rev. 626 (1971):

The question remains in Florida whether caveat emptor will be extended to foreclose implied warranties in the sale of new homes.
It has been contended that adoption of the remedy of implied warranty would adversely affect the stability of the new house market. The use of implied warranties with the respect to the sale of new chattels, however, has not had the effect of destroying the stability of the market place for chattels, ... Moreover, under the theory of implied warranty the purchaser would always have the burden of proving the house was defective when sold and could only recover if he were the first occupant of a new house.
Although the theory of implied warranty should not drastically affect the position of the legitimate builder-vendor, the doctrine could be very effective in reducing the number of those undesirables within the industry who have no intention of standing behind the quality of their work.... It should also be noted that the legitimate builder-vendor is much more capable of distributing the cost of his mistakes than is the innocent home buyer.
Undoubtedly, the law regarding the liability of a builder-vendor of new houses is changing. The above cases indicate a growing trend away from caveat emptor and toward the theory of implied warranty. The movement brings the law much closer to the realities of the market for new homes than does the anachronistic maxim of caveat emptor. The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times. Ancient distinctions which make no sense in today’s society and tend to discredit the law should be readily rejected.

Gable I, 258 So.2d at 17.

The Fourth District noted that, at the time of its decision, the rule that implied warranties do not extend to realty was fast eroding, as fourteen other jurisdictions had already rejected the rule. In extending the implied warranties to the sale of homes, most courts echoed sentiments similar to those expressed by the Arkansas Supreme Court in Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922, 923 (1970), in which the court stated:

Both the rapidity and the unanimity with which the courts have recently moved away from the harsh doctrine of caveat emptor in the sale of new houses are amazing,....
... The contrast between the rules of law applicable to the sale of personal property and those applicable to the sale of real property was so great as to be indefensible. One who bought a chattel as simple as a walking stick or a kitchen mop was entitled to get his money back if the article was not of merchantable quality. But the purchaser of a $50,000 home ordinarily had no remedy even if the foundation proved to be so defective that the structure collapsed into a heap of rubble.

The Fourth District joined those jurisdictions applying implied warranties to the sale of new homes. It held that “the implied warranties of fitness and merchantability extend to the purchase of new homes and condominiums in Florida from builders.” 258 So.2d at 18. The Florida Supreme Court upheld the Fourth District ruling, and established it as the law in this state. Gable v. Silver, 264 So.2d 418 (Fla.1972).

A decade later, in Conklin, the case mainly relied upon by the Developer, the Florida Supreme Court discussed Gable I, and held that implied warranties of fitness and merchantability do not extend to first purchasers of residential real estate for improvements to land, other than the construction of a home and other improvements “immediately supporting the residence thereon, such as water wells and septic tanks.” Conklin, 428 So.2d at 655. The facts of that case are important to an understanding of our reasoning in the instant case.

In Conklin, purchasers of vacant lots sought to recover from the developer for defects in a seawall abutting and buttressing the lots. The purchasers appeared to have bought the lots primarily for the purpose of investment, with an eye toward resale to other investors or to homebuild-ers. At the time of purchase, the seawall was the only improvement to the land. Following heavy rains, the seawall collapsed, and the purchasers sued the developer on a theory of implied warranty. Id. at 656.

After a very thorough review of the historical trend in the development of implied warranties, in derogation of caveat emptor, the Conklin court gleaned the kernel of the basis for imposition of liability under implied warranties. The court stated:

The rationale of the cases which relax or abandon the doctrine of caveat emptor is that the purchaser is not in an equal bargaining position with the builder-vendor of a new dwelling, and the purchaser is forced to rely on the skill and knowledge of the builder-developer with respect to the materials and workmanship of an adequately constructed dwelling house.... Common threads running through all the decisions extending implied warranties to purchasers of new homes are the inability of the ordinarily prudent homebuyer to detect flaws in the construction of modern houses and the chattel-like quality of such mass-produced houses.

Id. at 657-58. In considering the specific facts presented before it, however, the court found that such rationale was not applicable:

[W]e fail to see how the policy upon which Gable and its kindred were based would be furthered by application here.... Purchasers of such relatively unimproved realty may more reasonably be expected to inspect the property knowledgeably before purchase and may more likely be able to bargain for an express warranty than those who buy as complex a structure as a modern home.

Id. at 658. It is clear then that the court’s decision was based on the fact that the land and the seawall were subject to a competent inspection by the buyers, and that the buyers, as investors presumably on equal footing with the developer, were not in need of the consumer protection of implied warranties.

This view of the Conklin majority’s decision is strengthened by a reading of Justice Adkins’ dissenting opinion. He acknowledged the same historical trends in the application of implied warranties. He stated the same need for protection of consumers who do not have the requisite knowledge and expertise, and are dependent on the expertise of the builder/developer of a complex structure. Id. at 659-60 (Adkins, J., dissenting). He reached an opposite conclusion, however, decrying the failure of the majority to include “investors” in policy concerns for consumer protection, and finding that a seawall is also a complex structure; one that is “beyond the buyer’s ability to inspect.” Id. at 660-61.

With this understanding of Conklin in mind, we distinguish it from the instant case. Here, the plaintiff seeking a remedy under the implied warranties is not an investor, as was the case in Conklin. Rather, it is a homeowners association, representing individual homebuyers who purchased the homes mainly for their own residential purposes. Thus, unlike the investors in Conklin, these homebuyers are clearly within the ambit of public policy extending consumer protection. Additionally, the defects in this case are distinguishable from the defect considered by the majority in Conklin. The structures here are, without dispute, complex site improvements, some of which are underground. These improvements were put in so that the builder/developer could market move-in ready homes in a completed subdivision. The planning, permitting, site work and construction required to build these improvements requires expertise far beyond the expertise of the average home-buyer, so that the homebuyer, as well as homeowners association, must rely on the expertise of the builder/developer. During the construction of these structures, it is the builder/developer that has the opportunity for periodic inspection and approval of the ongoing work, not the homebuyer or homeowners association. The builder/developer is in a superior position to ferret out and discover defects in the construction of the improvements and to have the defects timely cured during construction. Upon completion of the construction, the defects are not readily discernable to the average homebuyer, even with diligent inspection.

Despite these factual distinctions, we acknowledge that we must also address the language in Conklin that extends the implied warranties only to improvements “immediately supporting the residence thereon, such as water wells and septic tanks.” In applying that language to the facts presented in this case, we reach a different conclusion than our sister court in Port Sewall.

There, a homeowners association brought suit on behalf of the individual homeowners, based on breach of the implied warranties of fitness and merchantability, to recover for defects in the construction of certain roads and drainage areas in the community. Port Sewall, 463 So.2d at 530. The trial court entered a directed verdict in favor of the defendant, based on Conklin, and the Fourth District affirmed, stating:

The foot bridge in question and the defective work complained of involved roads and drainage in the subdivision .and did not pertain to the construction of homes or other improvements immediately supporting the residences. That is the extent of the application of implied warranties to first purchasers of residential real estate in Florida.

Id. at 531.

We disagree with the Fourth District’s conclusion that roads and drainage in a subdivision do not immediately support the residences. We find the phrase “immediately support the residence” is subject to two meanings. The most apparent meaning, which seems to be the one used by the Fourth District, is something that bears or holds up a structure, such as a footer, a foundation or a wall, or is attached to the house. But we do not read Conklin this narrowly, and instead find that the phrase also refers to essential services, such as the two specifically pointed out by the Conklin court itself, septic tanks and water wells. These obviously “support” the home by making it habitable, and so, fit for its intended purpose.

In the case before us, we consider other services that we conclude are essential to the habitability of the residence: roads, drainage systems, retention ponds and underground pipes. Regarding the latter, it does not matter if these are storm sewer pipes, water pipes or sanitary sewer pipes. They are all essential services. It is well to distinguish these services from non-essential services or items; some examples that come to mind, and not intended as an exhaustive list, but only illustrative, are landscaping, sprinkler systems, recreational facilities or a security system. A defect in these may be ugly, inconvenient or uncomfortable, but do not render a home unfit for its intended purpose, i.e., habitability.

Thus we announce a test that is elegant in its simplicity: in the absence of the service, is the home inhabitable, that is, is it an improvement providing a service essential to the habitability of the home? If it is, then the implied warranties apply. Stated another way, we expressly hold that implied warranties of fitness for a particular purpose, habitability, and merchantability apply to structures in common areas of a subdivision that immediately support the residence in the form of essential services. We, likewise, hold that the services at issue in this case are services essential to the habitability of the home for purposes of application of the implied warranties. We emphasize, however, that our holding is limited to the facts of this case in that the Association and/or the homeowners may bring the claim for these privately-owned structures.

We believe this ruling is in keeping with Florida’s strong public policy of protecting consumers in a situation where they must rely on the expertise of the builder/developer for proper construction of these complex structures, where they are in an inferior position to inspect the work and to correct the defects in the construction phase and where the defects are not readily discernable to the average homeowner. We also believe this is an exercise in common sense. The builder/developer intends the improvements to be constructed free of defects, so the lots can be sold and homes constructed. The marketplace benefits because if the improvements are properly constructed, the homes are available not only for sale, but resale as well. Because the Fourth District reached a contrary conclusion in Port Sewall, we certify conflict with that opinion.

We are not complete in our review, however, if we do not address some collateral issues, raised on appeal. We reject the Developer’s position that the Association cannot bring a claim for implied warranties for defects in the common elements, but rather that the individual homeowners must bring the claims and that such claims can only be for damage to their individual lots or homes. In reality, a homeowners association represents the individual homeowners, and any cost of repairs to the defects in the common elements will be passed on to the homeowners in the form of assessments, regardless of whether that individual homeowner has damage to his or her own property. To require each homeowner to maintain a separate suit for damages is contrary to public policy in that it contemplates a multiplicity of lawsuits for the same issues, something we do not countenance. Such a scenario is not in the best interest of plaintiffs or defendants, and seriously erodes judicial economy.

Additionally, we reject the Developer’s argument that the Conklin court intended that the structures be physically attached to the house. The essence of the illustrations used by the court was services essential to supporting the residence in terms of habitability. Attachment was only incidental to providing the service. In a hyper-technical way, roadways, drainage systems and underground pipes abut or attach to residential lots and homes in a subdivision. But it would be illogical to provide a warranty to a home that is attached to an improvement, but not to another home that receives the service from the improvement, but does not physically touch it. The Developer urges a very strained and unreasonably limiting construction of Conklin.

We also reject the Developer’s argument that extending the implied warranties is a matter for the legislature. In the absence of a legislative pronouncement, we are free to apply common law, and this is a case of application of common law warranties. In fact, Gable I applied common law warranties in a condominium case before the legislature first enacted warranties for condominiums in section 718.203, Florida Statutes (1976). For similar reasons, we reject the Association’s application of cases extending implied warranties to the common areas in condominiums as we find those cases inapplicable precisely because those cases are decided on statutory grounds, not available here.

REVERSED and REMANDED. CONFLICT CERTIFIED.

GRIFFIN and ORFINGER, JJ., concur.

      . The Association initially filed suit against Maronda Homes, the developer of a residential subdivision. Maronda then filed a third-party complaint against T.D. Thomson which Maronda hired to construct the roadways and drainage systems. There is no need to distinguish between these two appellees for purposes of this appeal.

      . By the time Conklin was decided a decade later, thirty-three jurisdictions had extended the implied warranties to realty. See Sims v. Lewis, 374 So.2d 298 (Ala.1979); Columbia W. Corp. v. Vela, 122 Ariz. 28, 592 P.2d 1294 (1979); Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); Pollard v. Saxe & Yolles Dev. Co., 12 Cal.3d 374, 115 Cal.Rptr. 648, 525 P.2d 88 (1974); Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964); Vernali v. Centretla, 28 Conn.Supp. 476, 266 A.2d 200 (1970); Koval v. Peoples, 431 A.2d 1284 (Del.Super.Ct.1981); Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA), cert. denied, 264 So.2d 418 (Fla.1972); Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698 (1966); Petersen v. Hubschman Constr. Co., 76 Ill.2d 31, 27 Ill.Dec. 746, 389 N.E.2d 1154 (1979); Barnes v. Mac Brown & Co., 264 Ind. 227, 342 N.E.2d 619 (1976); McFeeters v. Renollet, 210 Kan. 158, 500 P.2d 47 (1972); Crawley v. Terhune, 437 S.W.2d 743 (Ky.Ct.App.1969); Banville v. Huckins, 407 A.2d 294 (Me.1979); Loch Hill Constr. Co. v. Fricke, 284 Md. 708, 399 A.2d 883 (1979); Weeks v. Slavik Builders, Inc., 24 Mich.App. 621, 180 N.W.2d 503, aff'd, 384 Mich. 257, 181 N.W.2d 271 (1970); Brown v. Elton Chalk, Inc., 358 So.2d 721 (Miss.1978); Smith v. Old Warson Dev. Co., 479 S.W.2d 795 (Mo.1972); Chandler v. Madsen, 197 Mont. 234, 642 P.2d 1028 (1982); Norton v. Burleaud, 115 N.H. 435, 342 A.2d 629 (1975); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965); DeRoche v. Dame, 75 A.D.2d 384, 430 N.Y.S.2d 390 (N.Y.App.Div.), appeal dismissed, 51 N.Y.2d 821, 433 N.Y.S.2d 427, 413 N.E.2d 366 (1980); Griffin v. Wheeler-Leonard & Co., 290 N.C. 185, 225 S.E.2d 557 (1976); Jeanguneat v. Jackie Hames Constr. Co., 576 P.2d 761 (Okla.1978); Yepsen v. Burgess, 269 Or. 635, 525 P.2d 1019 (1974); Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972); Sousa v. Albino, 120 R.I. 461, 388 A.2d 804 (1978); Rutledge v. Dodenhoff, 254 S.C. 407, 175 S.E.2d 792 (1970); Brown v. Fowler, 279 N.W.2d 907 (S.D.1979); Humber v. Morton, 426 S.W.2d 554 (Tex.1968); Rothberg v. Olenik, 128 Vt. 295, 262 A.2d 461 (1970); House v. Thornton, 76 Wash.2d 428, 457 P.2d 199 (1969); Moxley v. Laramie Builders, Inc., 600 P.2d 733 (Wyo.1979). At least one additional state has approved of the doctrine in dicta. Ass'n of Apartment Owners of Park Towers v. Child, 1 Haw.App. 130, 615 P.2d 756 (1980).

      . Fairness requires that we recognize that Justice Adkins would not extend implied warranties to roadways. Conklin, 428 So.2d at 661 (Adkins, J., dissenting). Given the passage of time and the complex nature of site work, and the essential nature of roads to ingress and egress, we respectfully disagree. We conclude instead that private roadways, constructed by the developer and turned over for maintenance to the homeowners association, are indeed related to the fitness and habitability of a home.


text:
    Larkeith Devon BONNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4764.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2010.
    Rehearing Denied Dec. 15, 2010.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Mr. Bonner may have to file a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

ALTENBERND, SILBERMAN, and BLACK, JJ., Concur.


text:
    Curtis Wayne BEMBO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5521.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2010.
    Curtis Wayne Bembo, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Christopher E. MORRIS, DOC # C00512, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-118.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 2010.
    Rehearing Denied Dec. 9, 2010.
    Christopher E. Morris, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm the circuit court’s denials of Christopher Morris’s motions filed pursuant to Florida Rules of Criminal Procedure 3.170(1) and 8.850.

CASANUEVA, C.J., and NORTHCUTT and LaROSE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Seadrick MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3188.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 2010.
    Rehearing Denied Dec. 10, 2010.
   ALTENBERND, Judge.

Seadrick Moore appeals an order dismissing his timely motion for postconviction relief that was filed pursuant to Florida Rule of Criminal Procedure 3.850. The order dismissed his motion with leave to file an amended motion within thirty days, and then informed him that he also had the right to appeal the order within thirty days. Mr. Moore chose to appeal the order and this court does not know whether he also filed an amended motion.

This court has previously held that it is improper to inform a defendant of a right to appeal when the order is a nonfinal order authorizing an amended motion. See Wooten v. State, 36 So.3d 187 (Fla. 2d DCA 2010). We must dismiss this appeal as an appeal from a nonfinal, nonap-pealable order. On remand, Mr. Moore shall have thirty days from the issuance of mandate to file an amended motion.

We comment that Mr. Moore filed his motion in October 2008. He filed it using the standard twelve-page form. He carefully typed the form and added about seventy pages of double-spaced typed material. The materials are lengthy because Mr. Moore carefully typed out all portions of the record that he thought were relevant to his claim, and he also included a legal memorandum within the motion itself.

The material contained one ground alleging ineffective assistance of counsel, describing five instances of ineffective assistance. In ground 1(B), he claims that he was offered a sentence of 27.6 months’ imprisonment by the State and that his attorney convinced him to reject the offer, resulting in a sentence of thirty years. It appears likely that a hearing will be required on this ground. It contained a second ground alleging fundamental error. The second ground is legally insufficient on its face because fundamental error is not a basis for postconviction relief. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009), review dismissed, 29 So.3d 291 (Fla.2010).

Nineteen months after Mr. Moore filed this motion, the trial court entered this order claiming that the eighty-one-page motion was too long and that the trial court had the right to impose a reasonable limit. For his “convenience,” the court attached the model form — which Mr. Moore had already used to file his motion nineteen months earlier. It then informed him that a reasonable length for his motion could not exceed fifteen pages, when the form itself, without content, is twelve pages in length. We note that both the Florida Supreme Court and the Fourth District Court of Appeal have recognized that a fifty-page limit on initial motions and petitions filed in court, unless the rules provide differently, is a reasonable limit unless good cause is shown justifying a higher limit. See Basse v. State, 740 So.2d 518 (Fla.1999); Schwenn v. State, 958 So.2d 531 (Fla. 4th DCA 2007).

We realize that prisoners sometimes file motions that are too long, but currently there are no standard forms to help them file shorter motions that contain all the necessary allegations. Likewise, they often file legal memoranda that have little value to the court. Unfortunately, they often have no access to computers and file handwritten pleadings that are extremely hard to read. Mr. Moore’s pleading was well organized and relatively easy to read. While it does require at least thirty minutes to read the document, we are inclined to believe that the trial court could have adequately reviewed and resolved this motion in the many months that it was pending in that court.

Presumably, if Mr. Moore obeys the trial court’s nonfinal order, the new motion will be little more than the headings he provided in his first motion. It will then be incumbent on the trial court to prepare an order with attachments to flesh out his claims and refute them if that can be done without a hearing. We are not convinced that the trial court’s methods are either efficient or effective in this context.

Appeal dismissed.

NORTHCUTT and WALLACE, JJ„ Concur.


text:
    Berlie DANIELS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5588.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.
    Berlie Daniels, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and ROWE, JJ., concur.


text:
    Shernerd RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5601.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.
    Shernerd Richardson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and ROWE, JJ., concur.


text:
    Berlie DANIELS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5587.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.
    Berlie Daniels, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and ROWE, JJ., concur.


text:
    Berlie DANIELS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5585.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.
    Berlie Daniels, Jr., pro se, Petitioner.

      Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1286 (Fla.2004).

WEBSTER, DAVIS, and ROWE, JJ„ concur.


text:
    Otis BLAXTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5584.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.
    Otis Blaxton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and ROWE, JJ., concur.


text:
    John LANCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5568.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.
    John Lance, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and ROWE, JJ., concur.


text:
    Scott HASEMEIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5319.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.

      Scott Hasemeier, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and ROWE, JJ., concur.


author: DAVIS, Judge.

text:
    David BRINSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2366.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

David Brinson, Jr., challenges his robbery sentence, which was imposed upon resentencing after reversal of his violent career criminal (VCC) sentence. See Brinson v. State, 995 So.2d 1047, 1049 (Fla. 2d DCA 2008). We affirm Brinson’s sentence without comment. We remand for the limited purpose of correcting a scrivener’s error which appears on the face of the judgment. The written judgment correctly reflects that Brinson was convicted of a second-degree felony, but it incorrectly identifies that felony as armed robbery, which is actually a first-degree felony. See § 810.02(2)(b), Fla. Stat. (1999). Accordingly, we remand with instructions that the trial court correct the written judgment to reflect that Brinson was convicted of the second-degree felony of robbery. See Newson v. State, 867 So.2d 603 (Fla. 2d DCA 2004).

Affirmed; remanded to correct scrivener’s error.

NORTHCUTT and SILBERMAN, JJ., Concur.


text:
    Jerry Wayne MATTHEWS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3405.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Jerry Matthews was placed on probation after pleading guilty in two criminal cases. Subsequently affidavits of violation of probation were filed in both cases. Matthews admitted his violations. The court orally imposed a term of 41.25 months’ imprisonment in each case and ordered the terms to run concurrently. We affirm the court’s decision to revoke Matthews’s probations and the sentences it imposed. But we remand with directions to correct the orders of revocation. In each case the order states that the term of imprisonment imposed is 44.25 months. The orders must be corrected to conform to the court’s oral pronouncement of sentences and the written sentencing documents, both of which reflect terms of 41.25 months’ imprisonment. Matthews need not be present for these corrections.

Affirmed, remanded for correction of probation orders.

CASANUEVA, C.J., and NORTHCUTT and LaROSE, JJ., Concur.


text:
    Joseph P. LOWERY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5555.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Nancy A. Daniels, Public Defender and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Based upon the state’s concession of fundamental error, and upon the applicable law, the corrected sentence imposing a mandatory minimum term of imprisonment of three years on count I of case number 00-0062-CFA is reversed and remanded for a new resentencing hearing where defendant shall be represented by counsel.

BENTON, PADOVANO, and CLARK, JJ., concur.


author: MAY, J.

text:
    Norman Lanel HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1834.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Rehearing Denied Jan. 5, 2011.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for carrying a concealed weapon and possession of a firearm after being adjudicated delinquent. He argues the trial court erred in certain rulings, thereby depriving him of a fair trial. We agree in part and reverse.

The charges arose from a tip by a confidential informant that a young man possessed a gun at a Fort Pierce parking lot. The tip indicated that the man wore a black tee shirt, blue jeans, and a blue baseball cap. A detective relayed the information to another officer, who drove to the location with a back-up officer following behind. The two police cars pulled into the parking lot behind a blue Chevy Caprice where three men stood next to the driver’s door.

Before putting his car in park, the lead officer saw the defendant reach for his front waistband, pull out a gun, open the driver’s door, and throw the gun in the car. The lead officer reached for his service pistol and ordered the men to get down.

The back-up officer searched the three men, but did not find the gun. The lead officer told the back-up officer the defendant had thrown the gun in the car. When the back-up officer opened the door to retrieve the gun, he discovered a young woman sitting in the front passenger seat.

The defendant was arrested and charged with carrying a concealed weapon and possession of a firearm after being adjudicated delinquent. The State listed the female passenger as a witness, but she failed to appear for her defense deposition in response to a subpoena or a resulting order to show cause issued by the trial court.

At trial, the defendant twice objected to discovery violations, at which time the trial court unilaterally undertook a Richardson analysis. The trial court later restricted defense counsel’s cross-examination of the female passenger, and disallowed defense counsel from arguing its position on a motion to suppress. We find the trial court’s limitation on defense counsel’s cross-examination of the female passenger reversible error, but also write to comment on the overall handling of this trial.

The first issue arose just after jury selection. The State advised the trial court of the need to substitute a witness due to the unavailability of another listed witness. The State explained that, although the lack of a permit was not an element of the charged crimes, defense counsel’s questions during voir dire gave the jury the impression the defendant had the right to carry a firearm. The State needed the witness to testify that the defendant did not have a permit to carry a concealed firearm. Defense counsel objected and requested a Richardson hearing.

Without hearing argument from counsel on the Richardson analysis, the trial court found a discovery violation, but that it was inadvertent, trivial, and did not affect the defendant’s ability to prepare for trial.

I’ll accept it [at] face value that whether or not a person has a concealed weapons permit is not an element of the crime charged, and [Defense counsel’s] questions during Voir Dire might have caused you to amend ... so I’ll find it inadvertent. Whether it was trivial or substantial, in my mind it’s ... it’s fairly trivial because it doesn’t relate to ... an element of the offense, but ... might be used to negate a ... possible ... affirmative defense....[] Whether you’ve been prejudiced in being able to properly prepare for trial. The exclusion of evidence is the most harsh, draconian remedy available under the law, and the Court must consider less drastic alternatives_If it was done mid-trial there [would] be a problem. [ ] No one’s committed to any theory of defense, no one’s made any irrevocable statements or assertions in opening that would ... cause prejudice.

After announcing its findings, the trial court gave defense counsel an opportunity to speak with the witness.

The second Richardson issue concerned the female passenger’s failure to appear for the defense deposition. Defense counsel argued that the female passenger’s failure to appear constituted a discovery violation and warranted her exclusion. Once again, the trial court single-handedly conducted the Richardson analysis.

THE COURT: Okay, well I don’t know that it’s a Richardson violation insofar it’s not that the State did something in failing to fulfill its obligations under 3.220, but I still think the third prong of Richardson is instructive and analogous, and that’s the prejudice prong regarding the witness fail[ing] to appear at a deposition. And the remedies always ... I mean it’s so easy to say, “Exclude Evidence, Exclude Witnesses.” Understanding the case law that I’m bound and obligated to follow says that is the [ ] harsh[est] draconian remedy available under the law that should be the absolute last resort. The existence of [the female passenger] has been known since day one in this case.... The ... rather than exclude evidence I would ... certainly give you time to talk to her. The fact that she failed to appear at a deposition in and of itself would not support the harsh remedy exclusion of evidence under State versus Consman (phonetic) the Courts’ noted properly that the right to take a deposition is not a Constitutional right.... I’ve heard nothing [] ... that would suggest to me that the harsh remedy of exclusion is necessary. But what I will do is, I will take a recess to give you a chance to talk to [the female passenger]. I’m not even go[ing][to] put a time limit on it, you just come get me when you’re ... when you’ve had a chance to talk to her.

We find no error in these ultimate rulings, but we do not condone the trial court’s unilateral manner in addressing Richardson.

“Once a trial court has notice of an alleged discovery violation, the trial court is obligated to conduct a Richardson hearing.” Lewis v. State, 22 So.3d 753, 757 (Fla. 4th DCA 2009). When an adequate Richardson hearing is conducted, we review the trial court’s decision to admit the evidence for an abuse of discretion. Wiltzer v. State, 756 So.2d 1063, 1066 (Fla. 4th DCA 2000).

[T]he court’s discretion can be properly exercised [o]nly after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or wilful [sic], whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.

Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970).

Here, the trial court short-circuited the Richardson hearings in both instances. Without allowing an opportunity for the defense to state its position, and without asking the State any questions, the trial court single-handedly addressed the issue. This is not the procedure required by Richardson.

The role of a trial court is to be a neutral arbiter and to rule on issues presented to it. It is not the role of the trial court to be prosecutor, defense counsel, and arbiter. While we find no error in the ultimate outcome of these issues, the trial court should allow the parties to play their roles in the proceedings and the court should restrict itself to conducting an adequate inquiry into the surrounding circumstances so that it can rule appropriately.

The defendant next argues error in the trial court’s limitation on defense counsel’s cross-examination of the female passenger. It is this error which causes us to reverse.

The State suggests the issue was unpreserved because defense counsel did not proffer the questions to be asked. We disagree. The defendant attempted to ask the female passenger about her failure to appear for a deposition even when the trial court ordered her to appear. Defense counsel advised the court that the questions would show the female passenger’s motive, bias, and lack of trustworthiness. We find that defense counsel sufficiently preserved the issue. See Coxwell v. State, 361 So.2d 148, 151-52 (Fla.1978).

“The trial court has broad discretion in determining the relevance of evidence and such a determination will not be disturbed absent an abuse of discretion.” See Heath v. State, 648 So.2d 660, 664 (Fla.1994). That discretion is limited by a criminal defendant’s Sixth Amendment right to confront his accusers. See Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982).

“Any party, including the party calling the witness, may attack the credibility of the witness by ... [s]howing that the witness is biased.” § 90.608(2),. Fla. Stat. (2008). A party has the right to “inquire into matters that affect the truthfulness of the witness’ testimony.” Chandler v. State, 702 So.2d 186, 195 (Fla.1997). And, “[o]ur evidence code liberally permits the introduction of evidence to show the bias or motive of a witness.” Gibson v. State, 661 So.2d 288, 291 (Fla.1995).

Here, the defendant’s Sixth Amendment right to confront the female passenger was violated. The defendant should have been permitted to cross-examine the witness about her failure to appear for the defense deposition and in response to the subsequent rule to show cause. This information was relevant to show her bias and motive to testify for the State. Accordingly, the trial court abused its discretion in prohibiting the defendant from questioning the witness on this subject.

Lastly, the defendant argues that his due process rights were violated when the trial court prohibited defense counsel from arguing the motion to suppress. “Fundamental to the concept of due process is the right to be heard which assures a full hearing, the right to introduce evidence at a meaningful time and in a meaningful manner, and judicial findings based upon that evidence.” See Hinton v. Gold, 813 So.2d 1057, 1060 (Fla. 4th DCA 2002).

Here, while defense counsel was permitted to cross-examine witnesses concerning the motion to suppress, the trial court allowed defense counsel only to proffer applicable case law. At that point, the court abruptly interjected its own analysis.

THE COURT: [] I mean this isn’t even a ... I don’t need argument.
It’s not even a close call. [ ] Babtiste [v. State ] [ ] was a case involving an anonymous tip, here it was the info came to law enforcement from a confidential informant who is known to law enforcement. The Detective, the information was relayed to his fellow officers’ that this information was, there’s a firearm, but what ... whether it’s [an] anonymous tip, or confidential informant I think the most distinguishing features in Babtiste [ ] the majority writes, “During the hearing on the Motion to Suppress, Officer Ellison (phonetic) testified that when she arrived at the scene, she did not observe Babtiste waiving [sic] or carrying a firearm, or engaging in any suspicious behavior. Officer Ellison (phonetic) further testified, “That Officer Willems (phonetic) the first officer to arrive at the scene did not indicate that Babtiste had engaged in any observed suspicious behavior.” This case is completely distinguishable, in this case they had information that he hád a firearm .... I think Babtiste [ ] is completely distinguishable, therefore I don’t have to necessarily criticize the decision, but as you know I was a Captain in the United States’ Marine Corp., and I have a more than a passing familiarity of what constitutes sound tactics if you want to remain alive. And I think Judge Justice Wells, and Bell in their dissent are ... absolutely right both tactically and legally. I think Justice Ansted and Perianti (phonetic) are very smart people, but I think they would have a life expectancy that could be measured in seconds, if they were law enforcements out on the mean streets of liberty city at 3 in the morning. It’s easy to kind of second guess law enforcement when you sit in the rarefied atmosphere of an Appellate Court where everyone that’s come into the building has gone through a metal detector, been subject to screening and wanding, and then you go into the courtroom and they’re, they are surrounded by armed Marshals or Deputies to sit back and say, “Well you should just go up and have a chat with these folks’.” Like I said, these people would be dead if they followed those kind of tactics. And I think Justice Wells and Justice Bell hit the nail on the head when they say, and again I’m citing the dissent, but the case I think even the main decisions are “The majority of the opinion is incorrect and incomplete because after determining there was a violation of the Fourth Amendment the majority fails to consider the appropriateness of the exclusionary rule.” Here I find no violation of the Fourth Amendment. This case is completely distinguishable, he was reaching for a gun in his waistband, and actually tossed the firearm away. He’s lucky he’s sitting here arguing a Motion to Suppress, rather than having been zipped up in a body bag that night because the officer would have been justified in using deadly force.... I believe the majority suggested procedure is unrealistic and extremely dangerous to law enforcement officers’ whether it’s a legal [] matter, I can tell you tactically it’s ... a kind of a goofy decision.... I find no violation, I think the law enforcement were completely within their rights in acting as they did.... I will deny the Motion to Suppress, and I will do a written Order as well.
[Defense Counsel]: If I could just say on the record that the Motion was denied without any argument whatsoever from Defense Counsel?
THE COURT: Well, I’ll note that it was [ ] not even a close call.... That the Motion was border line frivolous, and I don’t need argument.

While the Sixth Amendment does not require a criminal defendant to be heard on a motion to suppress, and we expressly do NOT require every motion to suppress be subject to argument from counsel, this trial reflects a consistent series of unnecessary restrictions on this defendant’s right to confront, argue, and present his case. See Herring v. New York, 422 U.S. 853, 868 n. 18, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). The courtroom is neither a stage designed for trial judges to editorialize about their interpretation of the law, nor is it a place to express displeasure with higher court rulings. Rather, the courtroom is designed to allow our system of justice to unfold and provide all parties concerned with a fair trial.

For the specific error in the limitation on cross examination, we reverse and remand the case for a new trial. See McDuffie v. State, 970 So.2d 312, 328-29 (Fla.2007). Given the judge’s above-quoted comments pertaining to the defendant being “lucky”, this case shall be assigned to another judge.

Reversed and Remanded.

DAMOORGIAN and GERBER, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: PALMER, J.

text:
    Brandon Allen HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2042.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2010.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Brandon Allen Harris (defendant) appeals his judgment and sentence for burglary of a dwelling. Determining that the defendant’s burglary conviction is not supported by competent, substantial evidence, we reverse. All other judgments and sentences are affirmed.

The burglary count filed against the defendant alleged that he and a co-defendant remained in a dwelling with the intent to commit or intent to attempt to commit a forcible felony, in violation of section 810.02(l)(b)2.c. of the Florida Statutes (2007). Section 810.02(l)(b)2.c. of the Florida Statutes states:

810.02 Burglary
[l](b) For offenses committed after July 1, 2001, “burglary” means:
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
c. To commit or attempt to commit a forcible felony, as defined in s.776.08.

The facts supporting the State’s charges against the defendant are undisputed. The defendant and his co-defendant knocked on an apartment door and then pushed their way inside. The defendant possessed a BB gun. The defendants ordered all seven occupants of the apartment to get on the floor, face down. The defendant struck one victim in the face with the BB gun. The defendants robbed the victims of a small amount of money and then fled the scene.

At the close of the State’s case, the defendant moved for judgment of acquittal on the burglary count, arguing that the State failed to prove a licensed or invited entry as required under section 810.02(l)(b)2.c. The trial court denied the motion. The jury thereafter found the defendant guilty as charged.

The defendant contends that the trial court erred by denying his motion for entry of a judgment of acquittal because the State presented no evidence that the defendant was licensed or invited to enter the premises occupied by the victims. The defendant contends that the statutory language “[njothwithstanding a licensed or invited entry”, required the State to prove that the defendant entered the premises with the consent of the occupants. We conclude that the plain language of section 810.02(l)(b)2.c., the legislative intent behind the enactment of the 2001 amendment to section 810.02, the case law following the 2001 legislative amendment, and the standard jury instruction for a remaining in burglary charge support the defendant’s argument.

First, the plain language of the section 810.02(l)(b)2.c. requires the State to prove a licensed or invited entry because it is an element of the offense. Black’s Law Dictionary defines “notwithstanding” as meaning “despite” or “in spite of.” Thus, the statute states that an individual commits a remaining in burglary when, despite a licensed or invited entry, he/she remains in a dwelling to commit or attempt to commit a forcible felony.

Second, the legislative intent behind the enactment of the 2001 amendment to section 810.02 indicates that a licensed or invited entry is an element of a remaining in burglary. In that regard, section 810.02 was amended by the legislature in 2001 following the Supreme Court’s ruling in Delgado v. State, 776 So.2d 283 (Fla.2000). In Delgado, the Court held that the “remaining in” language of the burglary statute was only applicable when there was consensual entry by the accused and the “remaining in” was done surreptitiously. Id. at 240-41. In amending the burglary statute, the Legislature stated, in pertinent part, as follows:

810.015. Legislative findings and intent; burglary
(1) The Legislature finds that the case of Delgado v. State, 776 So.2d 233 (Fla.2000), was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado v. State. The Legislature finds that in order for a burglary to occur, it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously.

§ 810.015 Fla. Stat. (2007)(emphasis added). The legislative intent indicates that a remaining in burglary is only committed where entry is licensed or invited and, accordingly, the State must prove such licensed or invited entry to obtain a remaining in burglary conviction.

Third, case law supports the defendant’s argument that a remaining in burglary can only be established where the accused’s entry is licensed or invited. In Ray v. State, 933 So.2d 716, 717 (Fla. 4th DCA 2006), Ray entered the victim’s open garage without consent or license and left on his bicycle after the victim discovered his presence. The victim found his circular saw near where Ray’s bicycle had been. A jury convicted Ray of burglary of a dwelling. Ray argued on appeal that, among other things, the trial court erred by giving a remaining in instruction on his burglary charge. The Fourth District held that the instruction was given in error, as the trial court should have only given the first portion of the amended instruction pertaining to section 810.02(b)(l)(stating that burglary is defined as “[ejntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter”). The court explained that any instruction regarding remaining in was improper because it was clear that Ray did not have permission to enter the garage and, therefore, there was no issue about his surreptitiously remaining in the garage. The only means by which he could be convicted of burglary was if he entered the garage with the intent to commit the offense because Ray entered without consent. The Fourth District reversed and remanded Ray’s conviction because the remaining in instruction allowed the jury to convict Ray of burglary even if he did not enter the garage with the intent to commit a crime. See also Davis v. State, 892 So.2d 518, 518 (Fla. 1st DCA 2004)(holding that the trial court erred by including a remaining in instruction because the facts could not support a surreptitious remaining and the defendant could only be convicted if he intended to commit theft or robbery when he entered the structure).

Lastly, the standard jury instruction for a remaining in burglary is instructive and consistent with the language of section 810.02(l)(b)2.c. The standard jury instruction provides:

Give this statement of the elements if the charge is unlawfully remaining:
To prove the charge of Burglary, the State must prove the following two elements beyond a reasonable doubt:
(Defendant) had permission or consent to enter a [structure] [conveyance] owned by or in the possession of (person alleged).
(Defendant) after entering the [structure] [conveyance] remained therein
Give a, b, or c as applicable.
c. with the fully-formed conscious intent to commit or attempt to commit the offense of (forcible felony alleged).

Fla. Std. Jury Inste. (Crim.) 13.1.

Accordingly, because the defendant’s conviction for burglary is not supported by competent, substantial evidence indicating that the defendant was licensed or invited to enter the premise occupied by the victims, the defendant’s judgment and sentence for burglary must be reversed and this case remanded so that they can be vacated by the trial court.

REVERSED and REMANDED.

SAWAYA and ORFINGER, JJ., concur.

      . See § 810.02(l)(b)2.c., Fla. Stat.(2007).


text:
    Larry L. DORTLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5318.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2010.
    Larry L. Dortley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(A).

KAHN, BENTON, and WETHERELL, JJ., concur.


text:
    Wayne WILSON, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-5306.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.

      Wayne Wilson, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, Florida Department of Corrections, and Beverly Brewster, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Wayne Wilson petitioned the Circuit Court for Escambia County for a writ of mandamus. He contended that the Florida Department of Corrections had failed to award him all the gain time to which he was entitled. The circuit court summarily denied the petition. Wilson seeks review by this court through a petition for writ of certiorari. See Sheley v. Fla. Parole Commn., 720 So.2d 216 (Fla.1998).

We find that it was departure from the essential requirements of law for the circuit court to deny the petition in this particular case without issuing an order to show cause to allow the Department to respond and to afford petitioner an opportunity to reply before ruling on Wilson’s claim. See Bujno v. Dep’t of Corr., 1 So.3d 1138 (Fla. 1st DCA 2009). Accordingly, the petition for writ of certiorari is granted and the order denying Wilson’s petition for writ of mandamus is quashed. This cause is remanded to the circuit court for further proceedings.

PETITION GRANTED.

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


text:
    Harry Michael WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4195.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Harry Michael Wright, pro se, Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of grounds one through six. However, we reverse and remand the denial of ground seven and direct the trial court to strike that portion of the appellant’s sentence imposing a $5,000 fine. See King v. State, 681 So.2d 1136 (Fla.1996) (holding that a trial court may not impose a fine under section 775.083 when imposing a habitual felony offender sentence under section 775.084), receded from on other grounds in Carter v. State, 786 So.2d 1173 (Fla.2001).

AFFIRMED in part, REVERSED AND REMANDED in part.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Jeremiah BEAZLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2327.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Jeremiah Beazley, pro se, Appellant.
    Bill McCollum, Attorney General and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant’s motion alleges that his habitual felony offender sentence is illegal because he does not have the necessary qualifying predicate offenses. We previously reversed and remanded for the postconviction court to either attach documentation demonstrating that the appellant qualified as a habitual felony offender or to grant relief. Beazley v. State, 18 So.3d 46 (Fla. 1st DCA 2009). The posteonviction court has failed to establish that the appellant qualifies for habitual felony sentencing.

Accordingly, we REVERSE and REMAND for the postconviction court to grant relief.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Richard Wayne CRAIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4059.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Richard Wayne Crain, pro se, Appellant.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The appellant asserts that he was sentenced pursuant to an incorrectly calculated scoresheet. The state concedes that he is entitled to be resen-tenced. See State v. Anderson, 905 So.2d 111 (Fla.2005) (“would-have-been imposed” test applies to scoresheet error claims raised in rule 3.850 motions). Thus, we reverse and remand for the appellant to be resentenced pursuant to a correctly calculated scoresheet. We otherwise affirm the summary denial of the appellant’s motion.

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    L.T., Next Friend of K.S.L., a Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D10-2073.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 2010.
    Kira Romero-Craft of the Legal Aid Society of the OCBA, Orlando, for Appellant.
    Kelly A. Swartz of Children’s Legal Services, Rockledge, for Appellee.
   PALMER, J.

L.T., the uncle of K.S.L., appeals an order entered by the trial court declaring L.T. to be KS.L.’s legal custodian, but dismissing L.T.’s dependency petition. Because the trial court erred, as a matter of law, in dismissing L.T.’s dependency petition, we reverse.

L.T. filed a petition for dependency regarding his nephew, K.S.L. The petition stated that K.S.L.’s parents were both deceased, K.S.L. was dependent within the meaning and intent of section 39.01(1), (2), (14)(e), (45) or (63) of the Florida Statutes (2009), and the only relative who was able to care for K.S.L. was L.T.

At the dependency hearing, L.T. explained that the Department of Homeland Security had released K.S.L. to L.T. as a caretaker after K.S.L. was rescued when his boat capsized off the coast of Florida. L.T. explained further that he filed the dependency petition on behalf of K.S.L. because an adjudication of dependency would allow K.S.L. to petition as a special immigrant juvenile. L.T. was not requesting any services from DCF.

The trial court dismissed L.T.’s dependency petition, but granted L.T. legal custody of K.S.L.:

The child’s parents are deceased. The Court treats the Petition for Dependency as a Petition for Legal Custody. The child, who will be 18 years of age in 3 days is not a dependent child. The child’s uncle, the Petitioner, has been his caregiver for the past nine months and will continue to do so. The child’s uncle qualifies as a caregiver under F.S. 39.01(10), and therefore the child is not abandoned. See S.H. v. [Dep’t of Children & Families], 880 So.2d 1279 (Fla. 4th DCA 2004).
This Court declares that L.T., has legal custody of the child. This is in the best interest of the child.
It is not in the best interest of the child to be returned to Haiti. There is no one in Haiti available to care for this child, and as previously indicated both parents are deceased.
The Petition for Dependency is dismissed.

L.T. contends that the trial court erred, as a matter of law, in dismissing his dependency petition because K.S.L. was dependent under F.L.M. v. Department of Children and Families, 912 So.2d 1264 (Fla. 4th DCA 2005). We agree.

F.L.M. was an orphan from Guatemala. At the time of the petition for dependency, F.L.M. was living with a family that was voluntarily furnishing him with a place to stay. The petition for dependency alleged that F.L.M. was abandoned and that he was dependent within the meaning of section 39.01 of the Florida Statutes. F.L.M. was seeking a dependency adjudication so that he could petition for legal residency in the United States under the federal special immigrant juvenile visa program. After concluding that the trial court possessed jurisdiction over the dependency proceeding, the Fourth District proceeded through its dependency analysis. The court addressed whether an orphaned child without a legal custodian is dependent under section 39.01(14)(e) of the Florida Statutes (now section 39.01(15)(e) of the Florida Statutes (2009)). The court answered the question in the affirmative, rejecting DCF’s argument that F.L.M. was not entitled to a finding of dependency because he was not abandoned under the Florida Statutes:

At trial when the judge asked the Department if the child is dependent, counsel responded using the term abandoned. This is not properly characterized as an abandonment case. The same definitional statute defines abandoned as the failure (of whoever is responsible) while being able to provide a minor child with support, guidance and supervision. Strictly speaking, the term abandoned is not appropriate when the parents or guardian have died because, in that event, they are no longer able to do anything. The real question was whether an orphaned child without a legal custodian is dependent. Section 39.01(14)(e) provides the answer. When a judge finds that a child is orphaned and has no legal custodian, the legal conclusion is that the child is dependent. Those facts are the ones proven at the hearing. The child had lost both his parents to death, and there had never been anyone appointed by a legal authority to be his custodian. His circumstances fit exactly within the statutory definitions.

Id. at 1268-69 (citation omitted). The Fourth District went on to distinguish the case of S.H. v. Department of Children and Families (the case which was relied on by the trial court in the instant case):

[T]he Department’s reliance on S.H. v. Department of Children & Families, 880 So.2d 1279 (Fla. 4th DCA 2004), is misplaced. There the child was not an orphan; his parents were still living in Guatemala. The child’s residency with an uncle in Florida was undertaken with the permission and consent of his living parents. Hence the child was not legally dependent because he was not abandoned. In contrast, here the child has no parents, no legal custodian, and no caregiver legally responsible for his welfare. His caregiver at the time of trial was a mere volunteer without legal appointment. Under these circumstances the child met the statutory requirements for dependency under section 39.01(14)(e).

Thus, under F.L.M., a child is dependent if the child is an orphan and has no legal custodian. Here, at the time of the dependency hearing, K.S.L. was an orphan with no legal custodian and, therefore, he was dependent.

DCF submits several arguments in support of affirming the trial court’s order. Initially, DCF contends that the trial court’s order dismissing L.T.’s dependency petition should be affirmed because the trial court lacked subject matter jurisdiction to rule on the petition. To support this argument, DCF relies on P.G. v. Department of Children and Family Services, 867 So.2d 1248 (Fla. 4th DCA 2004). In that case, P.G. was apprehended by the Immigration and Naturalization Service after illegally entering the United States. He was subsequently released into the custody of his uncle. At the time of the dependency petition, P.G. was “bound over” in immigration removal proceedings. The Fourth District held that, before the trial court could exercise jurisdiction over P.G., who the court found to be in constructive custody, the Attorney General was required to consent to the trial court’s jurisdiction. DCF argues that, here, the trial court did not have jurisdiction since K.S.L. was the subject of removal proceedings, he was in the constructive custody of L.T., and the Attorney General did not consent to the trial court’s jurisdiction. However, the record does not contain any of the details of K.S.L.’s release to L.T., nor does the record reveal the status of any removal proceedings involving K.S.L. Therefore, the record does not support DCF’s argument that the trial court lacked subject matter jurisdiction over the instant dependency petition.

DCF also contends that the trial court’s order should be affirmed because L.T. failed to comply with notice and service of process requirements set forth in sections 39.502 and 39.503 of the Florida Statutes (2009). However, DCF waived this issue for purposes of appellate review by failing to raise it below. See B.M. v. Dep’t of Children & Families, 981 So.2d 1229, 1238 (Fla. 4th DCA 2008).

Lastly, DCF contends that the trial court’s order dismissing the dependency petition is moot because K.S.L. has reached the age of majority. In F.L.M., the Fourth District held that the appeal of the trial court’s order dismissing the dependency petition was not moot, despite the fact that the child had reached majority, because the denial of the declaration of dependency had the effect of continuing to deprive the child of a legal basis for regularizing the child’s immigration status. F.L.M. v. Dep’t of Children & Families, 912 So.2d at 1269. Likewise, in this case, the issue is not moot.

REVERSED and REMANDED.

TORPY and LAWSON, JJ, concur.

      . See also 8 U.S.C. § 1101(a)(27)(J)(iii)(2003).


text:
    J.T., Mother of A.U. and K.U., minor children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D10-4583.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2010.
    Jessica Jordan, Susan M. Barber and Crystal McBee Frusciante, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Ward L. Metzger, Department of Children and Families, Jacksonville; Kelley Schaeffer, Appellate Counsel, Guardian ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

Appellant, J.T. (Mother), appeals the trial court’s Order of Adjudication of Dependency as to K.U. and Supplemental Order of Adjudication as to A.U. Appellant alleges the order was facially deficient and/or that there was insufficient evidence to support the trial court’s findings. For the reasons explained below, we agree and reverse.

Commendably, both the Florida Department of Children and Families (Department) and the Guardian ad Litem concede that there was insufficient evidence to support the trial court’s order. Our review of the order and the record leads us to agree; consequently, the order adjudicating K.U. dependent is reversed.

As to A.U., although the Department apparently sought an adjudication of dependency and the title of the trial court’s order indicates it is a “Supplemental Order of Adjudication” as to A.U., in the body of the order the trial court simply finds that the Mother abused A.U. but does not indicate whether A.U. was in fact adjudicated dependent. Further, the order is devoid of any factual findings to support the trial court’s conclusion that the Mother abused A.U. and lacks “the parenting skills necessary to provide the child with a safe and secure living environment.” Consequently, the order lacks any factual findings to adjudicate A.U. dependent as to the Mother. This alone warrants reversal. See M.S. v. Dep’t of Children & Families, 827 So.2d 1089, 1090 (Fla. 1st DCA 2002) (holding a “circuit court’s dependency order ‘must state the facts upon which the finding is made’ ” and the “[f]ailure to make the statutorily required findings of fact requires that the adjudication be vacated.”) (quoting T.S. v. Dep’t of Health & Rehabilitative Serv’s, 557 So.2d 676, 677 (Fla. 2d DCA 1990)).

In the dependency petition, the Department alleged the Mother neglected A.U. by virtue of her alleged abuse of K.U. To the extent this was the basis for the trial court’s finding that the Mother abused A.U. and that she lacks adequate parenting skills, such a finding requires reversal, as there was insufficient evidence to support a finding that the Mother either abused or neglected K.U.

For the foregoing reasons, the trial court’s Order of Adjudication of Dependency as to K.U. and Supplemental Order of Adjudication as to A.U. is REVERSED, and the cause is REMANDED with instructions to the trial court to vacate the order.

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


text:
    Christopher SINCLAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1701.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.
    Christopher Sinclair, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See White v. State, 273 So.2d 782 (Fla. 2d DCA 1973).


text:
    James Norman ALBRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-279.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s sexually violent predator judgment and commitment order. Our affirmance renders the State’s cross-appeal moot.

Affirmed.

MAY, DAMOORGIAN, and GERBER, JJ., concur.


text:
    Christian MOSQUERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5238.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Christian Mosquera, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

Dismissed. See Falco v. State, 44 So.3d 198 (Fla. 4th DCA 2010).

HAZOURI, CIKLIN and LEVINE, JJ., concur.


text:
    Quintin Jamar BRAXTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2474.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.
    Quintín Jamar Braxton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Quintín Jamar Braxton appeals from an order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for attachment of records that conclusively refute Braxton’s claim.

On appeal from a summary denial of a Rule 3.800(a) motion, this Court must reverse unless the post-conviction record conclusively shows that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that Braxton is entitled to no relief.

Reversed and remanded for further proceedings.