author: WALLACE, Judge.

text:
    STATE of Florida, Appellant, v. Tressie HALL, Appellee.
    No. 2D09-5599.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.
   WALLACE, Judge.

The State appeals Tressie Hall’s sentences in two cases following her no contest plea and argues that the circuit court erred in imposing downward departure sentences. We agree, and we reverse and remand for further proceedings.

At a pretrial hearing, Ms. Hall offered to plead no contest to two counts of grand theft in exchange for sentences of forty-eight months’ imprisonment. The State noted that Ms. Hall’s minimum permissible sentence was 66.1 months’ imprisonment with a maximum possible sentence of ten years’ imprisonment. The circuit judge asked whether there were any grounds to support downward departure sentences, noting that “if we’re going to do more than the 48 months[, defense counsel is] suggesting we have to have a trial.” The prosecutor opposed any sentence below the minimum permissible sentence and pointed out that Ms. Hall had committed the second grand theft within eleven days of bonding out after her arrest for the first grand theft. In addition, she had an extensive criminal record. The prosecutor argued that there was no “lawful reason for a departure here.”

The circuit judge announced that he would agree to Ms. Hall’s proposed sentences, reasoning that “early acceptance of responsibility and the fact that she’s scoring greater than the statutory maximum” were sufficient grounds for departure from the minimum permissible sentence. The circuit judge noted that early acceptance of responsibility is recognized under the federal sentencing guidelines and stated that “we want to in the system encourage people to take responsibility” and that “you got to give them something to give them a plea. You can’t say, hey, take the max for a plea.” Defense counsel then said that Ms. Hall wished to enter a no contest plea, and the judge accepted Ms. Hall’s no contest plea.

At sentencing, the State raised the same objections to the downward departure sentences. The circuit judge repeated the same grounds for departure and imposed forty-eight-month sentences on each of the' grand theft counts. No evidence was presented at either the pretrial hearing or the sentencing hearing about the basis for Ms. Hall’s request for downward departure sentences.

The Criminal Punishment Code requires that a sentencing scoresheet, including “the permissible range for the sentence that the court may impose,” be prepared for every defendant sentenced for a felony offense. § 921.0024(3), (7), Fla. Stat. (2008). “The lowest permissible sentence is the minimum sentence that may be imposed by the trial court, absent a valid reason for departure.” § 921.0024(2). And “[i]f the lowest permissible sentence under the [C]ode exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the [C]ode must be imposed.” § 921.0024(2).

A court may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026. The level of proof necessary to establish facts supporting the mitigation of a sentence is a preponderance of the evidence. When multiple reasons exist to support the mitigation, the mitigation shall be upheld when at least one circumstance or factor justifies the mitigation regardless of the presence of other circumstances or factors found not to justify mitigation.

§ 921.002(3). An appellate court reviews a circuit court’s decision on whether a valid legal ground for departure exists as a mixed question of law and fact, and the appellate court should sustain that decision “if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999); see also Kezal v. State, 42 So.3d 252, 254 (Fla. 2d DCA 2010) (noting same). If “the reasons articulated by the trial court for its downward departure sentence [are] either invalid or not supported by competent substantial evidence,” the reviewing court need not address the trial court’s discretionary determination of whether it should impose a departure sentence. State v. Knox, 990 So.2d 665, 668 (Fla. 5th DCA 2008).

Here, neither of the stated grounds for departure is expressly set forth under section 921.0026(2) as a basis for imposing a departure sentence. But the list of mitigating factors under section 921.0026(2) is not exclusive. Accordingly, we consider whether the nonstatutory grounds relied upon in this case constitute valid reasons for departure and whether there is competent, substantial evidence in the record supporting them. See State v. Betancourt, 40 So.3d 53, 56 (Fla. 5th DCA 2010).

Although it is true that Ms. Hall’s lowest permissible sentence exceeded the statutory maximum sentence, this is an invalid basis for departure under Florida’s sentencing scheme because it conflicts with the Code. See State v. McKnight, 35 So.3d 995, 998 (Fla. 5th DCA 2010) (noting that a trial court may not grant a departure “based on factors already taken into account by the sentencing guidelines”). As noted above, “[i]f the lowest permissible sentence under the [C]ode exceeds the statutory maximum sentence ... the sentence required by the [C]ode must be imposed.” § 921.0024(2). Thus imposing a sentence below the minimum permissible sentence because the minimum permissible sentence exceeds the statutory maximum sentence conflicts with the mandate of section 921.0024(2).

With regard to the second ground, the circuit judge noted that the federal sentencing guidelines provide for the reduction of a defendant’s sentence for acceptance of responsibility. The federal sentencing guidelines provide as follows:

(a) If the defendant dearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his oum misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

18 U.S.S.G. § 3E1.1 (emphasis added).

We question whether the concepts of acceptance of responsibility or early acceptance of responsibility set forth in the federal sentencing guidelines provide a valid basis for departure under Florida’s sentencing scheme. Those concepts have arguably been taken into account under the Code. And in certain respects, they may conflict with the stated goals of the Code. But we need not resolve that issue here because Ms. Hall did not establish that she had accepted responsibility for her actions.

The circuit judge referred to the two-bump reduction under the federal sentencing guidelines when commenting on the possibility of a departure sentence, which is the reduction contemplated by subsection 3El.l(a). But Ms. Hall did not present any evidence or argument to support her acceptance of responsibility. Instead, Ms. Hall “offered” to enter into a plea if the circuit court would impose a forty-eight-month sentence. The circuit court noted that defense counsel insisted that without such a reduction there would be a trial. The circuit court decided to impose a downward departure sentence before Ms. Hall pleaded, and thus her incentive to enter a plea was the negotiated reduction of her sentence, not her acceptance of responsibility.

In addition, Ms. Hall did not plead guilty after being assured of her departure sentence but, instead, pleaded no contest. By pleading no contest, Ms. Hall expressly declined to acknowledge her guilt and only agreed not to contest the evidence against her. See United States v. Shipley, 963 F.2d 56, 58 (5th Cir.1992) (noting that a reduction under the federal sentencing guidelines based solely upon a plea requires a plea of guilty).

Finally, other than her entry of a plea after the circuit court had agreed to impose a departure sentence, there was no evidence of Ms. Hall’s acceptance of responsibility for her offenses. In fact, the circuit court acknowledged that Ms. Hall was arrested at the scene for each offense after being caught shoplifting. Following the first offense, Ms. Hall gave a false name to the police, which was not discovered until booking. She committed the second offense within eleven days of her arrest for the first grand theft. When the merchant attempted to apprehend Ms. Hall for the second offense, she bit him. Thus, instead of acceptance of responsibility, Ms. Hall’s conduct displays its rejection.

The circuit judge also stated that he was relying upon “early” acceptance of responsibility. The circuit judge’s comments suggest that he was concerned with an inefficient use of the State’s resources to try the case, which implicates subsection 3El.l(b). But a defendant only qualifies for a reduction under subsection 3El.l(b) if the defendant qualifies under subsection 3El.l(a) and the State requests an additional reduction under subsection 3El.l(b). As discussed above, Ms. Hall did not prove that she accepted responsibility as contemplated by subsection 3El.l(a), and the State opposed any departure below the minimum permissible sentence. Thus Ms. Hall did not establish grounds for a departure sentence as contemplated by subsection 3El.l(b).

CONCLUSION

Because one of the stated grounds for imposing downward departure sentences is legally invalid and the other is not supported by competent, substantial evidence, we reverse Ms. Hall’s sentences for the two grand theft offenses and remand for further proceedings. Because Ms. Hall entered her plea in accordance with a negotiated agreement with the circuit court, Ms. Hall must have the option of withdrawing her plea on remand or, if she chooses, being resentenced within the guidelines. See State v. Green, 890 So.2d 1283, 1287 (Fla. 2d DCA 2005); McKnight, 35 So.3d at 998.

Affirmed in part, reversed in part, and remanded.

WHATLEY and LaROSE, JJ., Concur.

      . Ms. Hall was also charged with two misdemeanor offenses — providing a false name to a law enforcement officer and resisting a merchant.

      . Ms. Hall’s scoresheet reflects that she had seventeen prior felonies, including five burglaries, three grand thefts, and one petit theft.

      . The circuit court imposed sentences of time served on the two misdemeanor counts.

      . In addition, the circuit judge’s comments in this regard are not entirely accurate. The circuit judge reasoned that because Ms. Hall’s minimum permissible sentence of 66.1 months’ imprisonment exceeded the statutory maximum sentence for a third-degree felony, she had no incentive to enter a plea. Although it is true that 66.1 months’ imprisonment exceeds the statutory maximum sentence for a single grand theft, it does not exceed Ms. Hall's maximum sentence under her scoresheet, which is ten years' imprisonment. See §§ 775.082(3)(d), 812.014(2)(c)(l), 921.0024(2), Fla. Stat. (2008). Thus Ms. Hall did have an incentive to enter a plea in exchange for the minimum permissible sentence to avoid imposition of the maximum sentence of ten years’ imprisonment.

      . As suggested by the State, the concepts of acceptance and early acceptance of responsibility set forth under the federal sentencing guidelines are arguably incorporated into the mitigating factors set forth at subsection 921.0026(2)(i) (cooperation) and subsection 921.0026(2)0 (remorse) of the Code. To that extent, it would be improper for a circuit court to craft a basis for departure that would allow a defendant to avoid the specific requirements necessary to establish the express grounds for departure under the Code. See McKnight, 35 So.3d at 998. Ms. Hall does not argue, and the record does not reflect, that she established the requisite elements for application of the mitigating factors under subsections 926.0026(2)(i), (j).
      Moreover, Florida’s primary goal under its sentencing scheme is punishment. Rehabilitation is a secondary goal, and it is a stated policy that a defendant’s sentence should increase with the length and nature of the defendant’s prior record. § 921.002(l)(b), (d). A defendant’s ability to obtain a downward departure sentence simply by entering into a plea negotiated with the court after the fact arguably runs counter to these policies.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Jermaine Jerod FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1075.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Jermaine Francis, was charged by information with driving while his license was revoked as an habitual offender. Following a jury trial, Francis was found guilty and sentenced to eighteen months imprisonment.

The sole issue on appeal is whether the trial court erred in admitting into evidence a certified copy of Francis’ driving record in order to prove that Francis was an habitual traffic offender. During trial, the State showed the arresting officer a certified driving record from the Division of Driver’s Licenses and asked whether the name and date of birth matched those of defendant, and the officer replied that they did. Defense counsel objected to the admission of the driving record on the ground that the State failed to lay the proper predicate because name and date of birth do not conclusively establish that the driving record belongs to a defendant. The court found the predicate sufficient and admitted the driving record into evidence.

The officer proceeded to testify that based on the driving record, Francis had been an habitual traffic offender in 1995, in 2000, and in 2004. Furthermore, Francis had never reinstated his license and did not have a valid license on the date of his arrest.

Section 322.201, Florida Statutes, provides in pertinent part:

A copy, computer copy, or transcript of all abstracts of crash reports and all abstracts of court records of convictions received by the department and the complete driving record of any individual certified by the department or by the clerk of a court shall be received as evidence in all courts of this state without further authentication, if the same is otherwise admissible in evidence. Further, any court or the office of the clerk of any court of this state which is electronically connected by a terminal device to the computer data center of the department may use as evidence in any case the information obtained by this device from the records of the department without need of such certification; however, if a genuine issue as to the authenticity of such information is raised by a party or by the court, the court may require that a record certified by the department be submitted for admission into evidence.

§ 322.201, Fla. Stat. (2008). This section allows the admission of a copy of a defendant’s driving record to show both habitual traffic offender status and notice of revocation. Sorrell v. State, 855 So.2d 1253, 1254 (Fla. 4th DCA 2003).

We affirm Francis’ judgment and sentence as the State complied with the statute in the present case. Although Francis argues that Cox v. State, 816 So.2d 160 (Fla. 2d DCA 2002), requires reversal, we find Cox distinguishable. In Cox, the defendant was faced with probation revocation proceedings after allegedly committing a traffic offense. Id. at 160. The officer who wrote the citation did not appear to testify so the only evidence presented was the probation officer’s identification of a transcript of driver record from the Department of Highway Safety and Motor Vehicles and the probation officer’s testimony that the name and date of birth listed on the driving record matched defendant’s. Id. at 160-61. The Second District reversed the trial court’s revocation of probation and remanded for further proceedings because the identity of name and date of birth was insufficient to prove that Cox had committed the subject offense. Id. at 161.

In Cox, the State admitted the driving record via a probation officer who was not the proper custodian of the record whereas in the present case the driving record was admitted via the arresting officer. Id. at 160. Moreover, in Cox, the only evidence of the violation of probation was a traffic citation on the driving record. Id. No witness could testify that they saw Cox commit an offense. Id. In fact, the court’s opinion focuses on the State’s failure to prove that Cox committed the new offense. Id. at 160-61. In the present case, the officer testified that she saw Francis driving the truck and, upon running Francis’ license, learned that his license was revoked.

Finally, Francis never claimed below that the driving record did not belong to him. On this record, we find no error in the trial court’s admission of the driving record and affirm.

Affirmed.

WARNER and LEVINE, JJ., concur.


author: BLANC, PETER D., Associate Judge.

text:
    STATE of Florida, Appellant, v. John McMAHON, Appellee.
    No. 4D09-1965.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   BLANC, PETER D., Associate Judge.

The state appeals a sentencing order imposing a legal sentence and argues that the trial court improperly initiated plea negotiations with the defendant, John McMahon, and also refused to conduct a hearing on the defendant’s habitual felony offender status over the state’s objection. Although the record below supports both claims, we dismiss, finding that a sentencing order imposing a legal sentence is not an order appealable by the state.

The defendant was charged with possession of cocaine, possession of drug paraphernalia, and grand theft. The state filed a notice of intent to seek a habitual felony offender sentence. During a hearing, the trial court advised the defendant, “You can have the bottom of the guidelines today. I won’t habitualize him if he wants that today. If [he] doesn’t, he takes his chances down the road.” The state objected, arguing that it was entitled to a hearing on the defendant’s status as a habitual felony offender. The defendant accepted the plea, and he was sentenced within the guidelines to eighteen months in prison.

The Florida Supreme Court has admonished that a “trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party.” State v. Warner, 762 So.2d 507, 513 (Fla.2000). Once the trial court has been invited to participate, it may “actively discuss potential sentences and comment on proposed plea agreements.” Id. at 514. Although it is improper for a trial court to initiate a plea discussion, neither Florida Rule of Appellate Procedure 9.140(c) nor section 924.07, Florida Statutes (2009), authorizes the state to appeal court-initiated plea agreements. Further, this court held in State v. Figueroa, 728 So.2d 787 (Fla. 4th DCA 1999), that the state could not appeal a sentencing order imposing a legal sentence after the trial court advised the defendant that it would withhold adjudication of guilt and place the defendant on probation if the defendant pled guilty to the crimes charged. Id. at 787. This court determined that a trial court’s initiation of plea discussions does not render an otherwise legal sentence “illegal” for purposes of a state appeal under Florida Rule of Appellate Procedure 9.140(c) or section 924.07. Id. at 788; see also State v. Hewitt, 702 So.2d 633, 634-35 (Fla. 1st DCA 1997) (holding that the state does not have the right to appeal a sentencing order that imposes a legal sentence that does not constitute a downward departure even though the trial court initiated its own plea agreement with the defendant).

In the instant case, the trial court initiated plea discussions with the defendant without invitation of either party and over the state’s objection that it was entitled to a hearing on the defendant’s status as a habitual felony offender. Although the court-initiated plea negotiation was improper under the standard espoused in Warner, the sentence of eighteen months in prison was within the sentencing guidelines and ultimately a legal sentence. Thus, the sentencing order is not appealable by the state according to this court’s holding in Figueroa. We acknowledge that the Fifth District reached a contrary conclusion in State v. Chaves-Mendez, 809 So.2d 910, 910-11 (Fla. 5th DCA 2002) (“The trial court’s initiation of plea negotiations with the defendant was per se reversible error.”). The majority opinion in Chaves-Mendez does not discuss whether the sentence was a legal sentence; however, the concurring opinion explains that the sentence was a downward departure from the sentencing guidelines. Id. Although Chaves-Mendez appears to be factually distinguishable from the instant case because it dealt with a downward departure sentence, the opinion itself did not make that distinction, so we certify conflict with the majority’s decision.

We also conclude that the trial court’s failure to conduct a hearing on the defendant’s habitual felony offender status is not an appealable issue for the state. In State v. Hewitt, 21 So.3d 914 (Fla. 4th DCA 2009), this court recently held that it lacked subject matter jurisdiction to review a trial court’s failure to conduct a hearing or make written or oral findings on the defendant’s habitual felony offender status because the sentence ultimately imposed was a legal sentence. As discussed above, the sentence imposed by the trial court in the instant case was within the sentencing guidelines and, therefore, legal. Accordingly, the sentencing order is not appealable by the state, and this appeal must be dismissed.

Dismissed.

TAYLOR and CIKLIN, JJ., concur.

      . We recognize the tension between the holdings in Warner and Figueroa. Warner stands for the proposition that the trial court should never initiate plea discussions without invitation by the parties. However, unlike Figueroa and the instant case, the sentence in Warner was a downward departure from the guidelines. Warner did not overrule Figueroa presumably because the sentence in Figueroa was not a downward departure. Thus, Figueroa is still applicable to the state’s appeal of a court-initiated plea imposing a guidelines sentence.


author: PER CURIAM.

text:
    Leroy NETTLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2599.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.
    Carey Haughwout, Public Defender, and Peggy Natale, 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.
   PER CURIAM.

Affirmed. See State v. McCloud, 577 So.2d 939 (Fla.1991).

MAY, DAMOORGIAN and GERBER, JJ., concur.


text:
    Robert JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4887.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.

      Robert Jackson, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the appealed order. In addition, because the arguments made by appellant are repetitive and successive, we order appellant to show cause within twenty days why this court should not impose the sanction of no longer accepting his pro se filings and why it should not refer appellant to prison officials for disciplinary proceedings. State v. Spencer, 751 So.2d 47 (Fla.1999); § 944.279(1), Fla. Stat. (2009).

Affirmed; order to show cause issued.

WARNER, POLEN and LEVINE, JJ., concur.


author: PALMER, J.

text:
    SUN GLOW CONSTRUCTION, INC., Appellant, v. CYPRESS RECOVERY CORPORATION, Appellee.
    No. 5D10-838.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    M. Bradley Luczak of White & Luczak, P.A., Winter Park, for Appellant.
    Debra L. Greenberg and Robert D. Friedman of Friedman & Greenberg, P.A., Plantation, for Appellee.
   PALMER, J.

Sun Glow Construction, Inc., appeals the order entered by the county court authorizing a levy on real property owned by the corporation. This court accepted jurisdiction to review the order pursuant rule 9.160(e)(2) of the Florida Rules of Appellate Procedure to address the following question, certified by the county court to be of great public importance: “Does the re-recording of a certified copy of a judgment after the expiration of the original judgment lien impose a new lien on real property held by the judgment debt- or?” We answer the question in the affirmative and affirm.

The facts in this case are as follows. Florida National Bank obtained a judgment against Roberta McRee and recorded a certified copy thereof in 1990. In 1997, the judgment expired by operation of law. In 2000, the judgment was re-recorded. By that time, the judgment had been assigned to Cypress Recovery Corporation. In 2004, McRee took ownership of property which, two years later, she sold to Sun Glow Construction. In 2008, the circuit court, sitting in its appellate capacity, issued an order ruling that Cypress Recovery Corporation’s re-recording of the bank’s judgment after the original judgment lien had expired created a new lien on McRee’s property which was later sold to Sun Glow. Cypress Recovery Corporation thereafter filed a motion for an order authorizing levy on Sun Glow’s property. The county court entered an order permitting Sun Glow to intervene in the matter and raise defenses to that levy motion. The county court subsequently entered an order authorizing the levy.

Sun Glow sought rehearing of the levy order; however, the county court denied the motion. At the same time, the county court certified to this court, as a question of great public importance, the issue of whether the re-recording of the bank’s judgment after the expiration of the original judgment lien imposed a new lien on the real property held by McRee and later sold to Sun Glow.

We conclude that, in rejecting Sun Glow Corporation’s argument that a judgment cannot be re-recorded after it has expired by operation of law, the county court properly relied upon the previously issued order entered by the circuit court, sitting in its appellate capacity, which held that the re-recording of the bank’s judgment after the original judgment lien expired created a new lien. We further conclude that, in so ruling, the circuit court properly relied on Franklin Financial, Inc. v. White, 932 So.2d 434 (Fla. 4th DCA 2006).

In Franklin, 932 So.2d 434 (Fla. 4th DCA 2006), the Fourth District was asked to decide whether a judgment lien may be re-recorded after it had expired. In that case, a judgment was entered in the early 1990’s. The original judgment holder never executed on the judgment. Through a series of assignments, Franklin Financial came to hold the judgment. On January 29, 2003, Franklin Financial recorded the judgment along with an affidavit containing its address. It then filed a complaint to foreclose the judgment lien on property owned by White. The trial court concluded that Franklin Financial had no valid lien on White’s property, reasoning that the underlying judgment was defective because it failed to affix liability to a specific defendant. The court accordingly entered summary judgment against Franklin Financial. On appeal, the Fourth District was asked to determine whether Franklin Financial, as the assignee of the original judgment holder, was authorized to rerecord the judgment and thereafter seek enforcement. On those facts, the Fourth District concluded that a judgment creditor is authorized to re-record a judgment after the first judgment lien has expired:

Section 55.10(1), Florida Statutes (2003), provides that a judgment becomes a lien on real property in any county where a certified copy of it is recorded in the official records of the county. The judgment lien lasts for a period of ten years. The lien may be extended for an additional period by rerecording a certified copy of the judgment prior to the expiration of the lien and by simultaneously recording an affidavit with the current address of the person who has a lien as a result of the judgment. § 55.10(2), Fla. Stat. (2003). No judgment can be a lien beyond twenty years after the date of the original judgment. § 55.081, Fla. Stat. (2003). The statute is silent as to whether the judgment may be rerecorded after the original judgment lien has expired.
The statutory mechanism for extending the life of a judgment lien was designed to allow the judgment creditor to maintain its priority over any subsequent lien holders. When a judgment is recorded, the judgment lien takes priority over any liens recorded thereafter. It maintains this priority so long as it exists. If the judgment lien begins to reach its statutorily defined time limit, the judgment creditor may file for an extension pursuant to section 55.10(2). The logical result of filing an extension is that the life of the original judgment lien is extended. By extending the judgment lien’s life, the judgment creditor maintains the judgment lien’s priority over any hens recorded after its original date of recording and also over any liens recorded after its date of extension.
A different outcome is produced if the judgment creditor allows the judgment hen to lapse without filing for an extension. In that case, the judgment hen ceases to exist. The judgment creditor may choose to rerecord the judgment at a later time, but a new judgment lien is created and it takes no priority over hens already recorded. Like a child that wanders out of a queue, the newly rerecorded judgment lien has lost its place and must go to the back and stand behind all previously recorded judgment hens.
We hold a judgment creditor may rerecord a judgment even after the original judgment lien has expired. Franklin Financial’s judgment was a valid judgment against Mrs. [White]. The recording of that judgment created a vahd judgment hen.

Id. at 436 (footnote and case citations omitted). We agree with this conclusion.

Notably, before Franklin Financial was issued, our court acknowledged that a judgment creditor is authorized to re-record a judgment and thereby create a lien. In Farkus v. Florida Land Development Company, 915 So.2d 688 (Fla. 5th DCA 2005), our court addressed the issue of a judgment that did not contain the address of the judgment creditor. In that case, the facts were as follows:

Farkus filed a complaint seeking to foreclose a final judgment lien on real property owned by Florida Land. The complaint explained that a final default judgment had been entered against Florida Land in favor of CNL Income Fund IX, Ltd., in January 2003, and that said final judgment was assigned by CNL to Farkus in February 2004. Florida Land filed an answer denying liability as well as a separate motion for summary judgment. The motion asserted that entry of summary judgment in favor of Florida Land was warranted based on the fact that the default judgment failed to comply with the terms of section 55.10(1) of the Florida Statutes (2003), which provides that a judgment does not become a lien on real property unless the address of the person who has the hen is contained in the judgment. The trial court granted the motion and entered summary judgment in favor of Florida Land.

Id. at 688. On appeal, Farkus argued that the trial court erred in entering summary judgment in favor of Florida Land because, by placing her address on the assignment documents, she met the requirements of section 55.10(1) of the Florida Statutes. Our court rejected this argument based on the lack of legal authority to support it. Importantly, in a footnote, our court recognized the availability of a cure:

Nothing prevents the holder of a recorded judgment which does not properly contain the address of the judgment creditor from curing the defect by rerecording the judgment and simultaneously filing an affidavit with the address as provided for in section 55.10 of the Florida Statutes. Such re-recording would not relate back to the original recording of the judgment, but would create a lien on property from the date of the re-recording forward.

Farkus, 915 So.2d at 689 n. 1. See also Clinton v. Doehla, 933 So.2d 1215 (Fla. 3d DCA 2006)(holding that when a judgment creditor fails to meet the requirements for creating a judgment lien on real property nothing prevents the holder of a recorded judgment which does not properly contain the address of the creditor from curing the defect by re-recording the judgment and simultaneously filing an affidavit with the address as required by statute).

In sum, we conclude that the re-recording of a certified copy of a judgment after the expiration of the original judgment hen imposes a new lien on real property held by the judgment debtor. Accordingly, we answer the certified question in the affirmative and affirm the county court’s order authorizing a levy on Sun Glow Construction’s property.

AFFIRMED.

GRIFFIN and EVANDER, JJ„ concur.


author: EVANDER, J.

text:
    Albert Fernand MICHAUD, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-118.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.

      William H. McDonald, III, Ocala, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   EVANDER, J.

Michaud appeals his convictions for aggravated battery with a deadly weapon, aggravated assault with a firearm, and false imprisonment. We affirm the convictions for aggravated battery -with a deadly weapon and false imprisonment. However, the trial court’s failure to grant Michaud’s request to have the jury instructed on improper exhibition of a dangerous weapon or firearm as a lesser included offense of aggravated assault with a firearm requires a reversal on that count.

The evidence, taken in the light most favorable to the State, establishes the following facts: In February 2009, the victim, Michaud’s estranged wife, visited him at his residence. The victim fell asleep on the couch and was awakened when Mi-chaud approached her with plastic ties in his hand. Michaud said that he had heard the ties would enhance the couple’s sexual relationship. The victim refused to be tied up, went into a bedroom, and went back to sleep. Around 4:00 a.m., the victim woke and saw Michaud, who was intoxicated, holding a wrench and the plastic ties. Mi-chaud told the victim he was going to tie her to the bed. The victim tried to back away but Michaud grabbed her and a struggle ensued. During the struggle, Mi-chaud hit the victim in the head with the wrench approximately seven times. At one point during these events, Michaud said that “he did not care about anything” and that he was going to kill both of them.

The struggle in the bedroom ended when Michaud permitted the victim to go to the kitchen to get a glass of water. Michaud followed the victim to the kitchen, grabbed a rifle or shotgun, and told the victim that he intended to tie her to the bed and “put a bullet in her head.” Mi-chaud and the victim remained seated at the kitchen table for approximately three hours. Whenever the victim attempted to stand up, Michaud would point the gun at her and remind her that he was a good shot. When Michaud momentarily left the room, the victim was able to flee to a neighbor’s house. The police were called, Michaud was arrested, and the victim was taken to the hospital for medical treatment. There she received sixteen stitches along her right eyebrow and three staples in her head.

In affirming Michaud’s conviction for aggravated battery with a deadly weapon, we reject Michaud’s argument that, as a matter of law, a wrench is not a deadly weapon. Section 784.045, Florida Statutes (2008), provides that:

(1)(a) A person commits aggravated battery who, in committing battery:
(2) Uses a deadly weapon.

An instrument that will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design is a deadly weapon. Robinson v. State, 547 So.2d 321, 323 (Fla. 5th DCA 1989). However, an object can also be found to be a deadly weapon if used or threatened to be used in a way likely to produce death or great bodily harm. See, e.g., Vincente v. State, 669 So.2d 1119 (Fla. 3d DCA 1996) (screwdriver constituted deadly weapon where it was employed by defendant as knife with which to stab victim); Coronado v. State, 654 So.2d 1267 (Fla. 2d DCA 1995) (sticks used to repeatedly strike victims constituted deadly weapons); Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 1985) (razor blade held to victim’s throat during attempted robbery could be found to be deadly weapon). Whether an object is a deadly weapon is generally a question of fact to be determined by the jury. White v. State, 723 So.2d 357 (Fla. 5th DCA 1998). Here, the trial court properly submitted the matter to the jury.

We do, however, agree with Mi-chaud’s contention that his conviction for aggravated assault with a firearm must be set aside. At trial, Michaud requested that the jury be instructed on the lesser included offense of improper exhibition of a dangerous weapon or. firearm. Section 790.10, Florida Statutes (2008), defines this offense as follows:

If any person having or carrying any ... firearm ... or other weapon shall in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree....

Improper exhibition of a weapon is the next lesser-included offense of aggravated assault and if the pleadings and proof support the charge, it is reversible error not to give a requested instruction on an offense which is one step removed from the charged offense. Janus v. State, 477 So.2d 644, 645 (Fla. 2d DCA 1985); see also Hill v. State, 593 So.2d 290 (Fla. 2d DCA 1992); Devaughn v. State, 582 So.2d 728 (Fla. 1st DCA 1991).

In the instant case, the requested instruction was supported by both the information and the evidence. The information alleged, inter alia, that Michaud “did unlawfully and intentionally threaten by word or act to do violence to the person of [the victim], coupled with an apparent ability to carry out said threat, and utilized a deadly weapon, to-wit, a firearm.... ” The evidence presented at trial was sufficient for a jury to find that Michaud had exhibited a weapon or firearm in a rude, careless, angry, or threatening manner in the presence of the victim.

The other issues raised by Michaud are without merit.

AFFIRMED, in part; REVERSED in part; REMANDED.

MONACO, C.J. and COHEN, J., concur.

      . § 784.045(l)(a)2, Fla. Stat. (2008).

      . §§ 784.021(l)(a) and 775.087(2)(a)l„ Fla. Stat. (2008).

      .§ 787.02, Fla. Stat. (2008).


text:
    Arthur HIGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-287.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

See Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (“Thus, an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.”); see also McCauley v. State, 842 So.2d 897 (Fla. 2d DCA 2003); State v. Mallory, 409 So.2d 1222 (Fla. 2d DCA 1982).

AFFIRMED.

LAWSON, EVANDER and JACOBUS, JJ., concur.


text:
    Roger L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2530.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    Roger L. Johnson, Orlando, pro se.
    No Appearance for Appellee.
   PALMER, J.

Roger L. Johnson (defendant) appeals the trial court’s order denying his post-conviction motion filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. In his motion, the defendant alleged that he was illegally sentenced for the second degree felony of leaving the scene of an accident involving a death because he was sentenced to eight years of incarceration followed by 12.5 years of probation. In the order denying the defendant’s motion, the trial court noted that, at the time the defendant committed the offense, the crime was classified as a second-degree felony punishable by up to 15 years in prison, and that the defendant received a legal sentence of eight years of incarceration followed by five years of probation. See § 316.027(l)(b) Fla. Stat. (2007). However, the trial court did not attach the judgment and sentence to its order. Accordingly, this matter is remanded to the trial court for the attachment of the portions of the record that conclusively refute the defendant’s claim. See Rodriguez v. State, 919 So.2d 576 (Fla. 3d DCA 2006).

REVERSED and REMANDED.

TORPY and LAWSON, JJ., concur.


text:
    Tommy Bernard JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-2877.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    Tommy Bernard Jackson, East Palatka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Tommy Jackson petitions this Court for a writ of habeas corpus based upon a claim of ineffective assistance of appellate counsel for failure to file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). He claims his attorney should have challenged the legality of his drug offender probation. We agree.

Jackson was convicted of possession of cocaine with intent to sell, which is not one of the enumerated offenses for which drug offender probation can be imposed under section 948.20, Florida Statutes (2007). Therefore, we grant Jackson’s petition and remand to the lower court so that Jackson’s drug offender probation can be converted to regular probation with or without special conditions, as the court deems appropriate. See Taylor v. State, 17 So.3d 310, 311 (Fla. 5th DCA 2009); State v. Roper, 915 So.2d 622, 623-24 (Fla. 5th DCA 2005).

PETITION GRANTED and CAUSE REMANDED.

GRIFFIN, EVANDER, and JACOBUS JJ., concur.


text:
    Timothy THOMAS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-2977.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    Timothy Thomas, Jr., Palatka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case numbers 07-1819-CF, 07-1857-CF, and 07-2006-CF, in the Circuit Court in and for Putnam County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, ORFINGER and COHEN, JJ., concur.


text:
    Sothea KIM, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3220.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    Sothea Kim, Bonifay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence rendered in case no. 2008-CF-009967-B-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, C.J., GRIFFIN and PALMER, JJ., concur.


author: ALTENBERND, Judge.

text:
    Nicholas Michael ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3036.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.
    James Marion Moorman, Public Defender, and Edward Lee Giles, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Nicholas Michael Roberts appeals his judgments and sentences for two counts of improper exhibition of a firearm. We affirm one judgment and sentence but order that the second judgment and sentence be vacated on remand because it violates double jeopardy.

Mr. Roberts was charged with two counts of aggravated assault with a firearm. He was working as a taxi driver when he got into a dispute with two men who were in a pickup truck that was parked near his taxi. He told the men to leave and pointed a firearm at them, stating that he could shoot them.

When the case was submitted to the jury, the misdemeanor offense of improper exhibition' of a firearm was listed as a lesser offense for each aggravated assault. The jury found Mr. Roberts guilty of improper exhibition of a firearm as a lesser offense for both counts. The trial court entered judgments for both convictions and sentenced Mr. Roberts to concurrent terms of probation.

Section 790.10, Florida Statutes (2007), prohibits the exhibition of a firearm “in the presence of one or more persons.” Accordingly, although Mr. Roberts could have been convicted of two aggravated assaults if the jury had fully accepted the State’s case, see, e.g., Mauldin v. State, 9 So.3d 25, 28 (Fla. 4th DCA 2009), the verdict for the lesser-included offense permits only a single conviction. See Bass v. State, 739 So.2d 1243, 1246 (Fla. 5th DCA 1999); Canion v. State, 661 So.2d 931, 931 (Fla. 4th DCA 1995). Therefore, we reverse the judgment and sentence for the second count of improper exhibition of a firearm and remand for the trial court to vacate the conviction.

Affirmed in part, reversed in part, and remanded.

KELLY and BLACK, JJ., Concur.


text:
    Georgia A. CHAMBERLIN, Appellant, v. Thomas W. MILLER, III, Appellee.
    No. 1D10-2362.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Joel F. Foreman, Toby V. Olvera, of Foreman & Olvera, P.A., Lake City, for Appellant.
    David C. Braun of The Law Office of Ryan J. Peters, Live Oak, for Appellee.
   PER CURIAM.

Appellant, Georgia A. Chamberlin, appeals the trial court’s order granting the petition to change her minor son’s surname to that of his father, appellee Thomas W. Miller III. Because the evidence does not support the trial court’s finding that a name change is in the child’s best interests, we reverse.

In November 2008, Ms. Chamberlin learned she was pregnant and informed Mr. Miller that he was the father. Mr. Miller requested a pre-birth paternity test, but Ms. Chamberlin declined based on her concern for risks to her unborn child.

Ms. Chamberlin gave birth to her son on February 3, 2009, and gave him the surname of Chamberlin. DNA testing conducted in April 2009 confirmed Mr. Miller as the child’s father. In June 2009, Mr. Miller filed a Petition to Determine Paternity and for Related Relief, including a request to change the child’s surname from Chamberlin to Miller.

Mr. Miller testified to the trial court that he sought the name change because of his desire for his son to carry on the Miller family name, because he believes a child should share his father’s surname, and because he fears his son will be teased by classmates if he does not have the same last name as his father. Mr. Miller testified that he would have been at his son’s birth if he had been informed when Ms. Chamberlin was in labor, and he would have signed the birth certificate at that time. The trial court granted Mr. Miller’s petition to change the child’s surname from Chamberlin to Miller based on Mr. Miller’s testimony. Florida law, however, does not support a trial court’s ruling to change a child’s surname based on testimony which does not demonstrate that the change is in the child’s best interests. See, e.g., Hutcheson v. Taylor, 43 So.3d 921 (Fla. 1st DCA 2010).

When granting a petition to change the surname of a minor, a parent’s conclusory assertions are insufficient to demonstrate that the change is in the best interests of the child. Id. at 922. Under the best interests standard, the record must affirmatively show that a name change is required for the welfare of the child. Collinsworth v. O’Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987) (“This standard, emphasizing best interests of the child rather than parents, would accord effect to the same factors governing custody.”); Levine v. Best, 595 So.2d 278 (Fla. 3d DCA 1992). None of the arguments presented to the trial court here support a finding that a name change would be in the minor child’s best interests or required for his welfare. Rather, the arguments advanced by Mr. Miller to support the petition either have no bearing on a best interests analysis or have been previously rejected by this court.

Mr. Miller testified that he preferred that his son have his father’s surname; however, a parent’s desire for a child to carry on a family name has no bearing on whether the child’s best interests would be served by a name change. McKay v. Haikey, 860 So.2d 1046, 1049 (Fla. 5th DCA 2003). Similarly, Mr. Miller’s argument that it is customary for a child to take his or her father’s name does not demonstrate whether a name change is in a child’s best interests. See Girten v. Andreu, 698 So.2d 886, 888 (Fla. 3d DCA 1997). Finally, Mr. Miller’s assertion that his son may experience ridicule in school if his name is not the same as his father’s is purely speculative. This court has rejected such speculative arguments as insufficient to establish that a name change is in a child’s best interest. See Hutcheson, 43 So.3d at 923 (vacating an order requiring a name change where the trial court’s ruling was based on speculative evidence that failure to give the child the father’s surname could send a negative message about the father-daughter relationship).

Because Mr. Miller failed to meet his burden of demonstrating that the name change was in the child’s best interests or required for the child’s welfare, the trial court abused its discretion in granting the name change petition; therefore, the order must be reversed.

REVERSED.

HAWKES, C.J., ROBERTS and ROWE, JJ., concur.


text:
    Gayla Carter ESTES, Appellant, v. Dennis M. SASSANO and Apollo Development Enterprises, L.L.C., a Florida limited liability company, Appellees.
    No. 1D08-5470.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Jerrilynn Hadley of Hadley & Brown PLLC, Bay Point, for Appellant.
    Robert A. Rush and Marian B. Rush of Rush & Glassman, Gainesville, for Appel-lees.
   PER CURIAM.

Gayla Carter Estes appeals a final order dismissing with prejudice her complaint against Dennis M. Sassano and Apollo Development Enterprises, L.L.C., appellees, as a sanction for her discovery violations. Estes argues that the trial court erred in imposing the extreme sanction of dismissal. Because the appellant has failed to produce an adequate record for appellate review, we affirm.

Apollo Development Enterprises, L.L.C., (Apollo) is the developer of a condominium project known as Meditereanea Condominium. Dennis M. Sassano (Sassa-no) is an authorized agent, employee, joint venturer, and managing partner of Apollo. Gayla Estes (Estes) was engaged in real estate development. In Estes’ thirteen-count complaint against Apollo and Sassa-no, she alleges that on July 8, 2003, she visited Sassano’s office at Meditereanea. According to the allegations, Sassano took Estes to one of the units in the condominium project because the two were considering working together in the development of other projects. Estes alleges that, once in the apartment, Sassano sexually assaulted her. She alleges that she suffered severe emotional injury from this incident. Estes’ complaint alleges claims of sexual battery, false imprisonment, and assault, among other claims.

Discovery was initiated. On June 8, 2005, appellees served a request for production of documents seeking production of income tax returns and other documents supporting .Estes’ claims. On July 18, 2005, the court entered an order scheduling a case management conference. Shortly thereafter, both of the law firms representing Estes withdrew. Estes obtained new counsel, but there was no compliance with the request for production or objection to the request. Appellees’ counsel filed a motion to compel on October 14, 2005. On November 4, 2005, the court entered an order compelling production of the items requested. Not much occurred in the case for the next year and a half. Then counsel for appellees issued numerous subpoena ducus tecum to Estes’ treating physicians and the hospitals in which she was treated. At the same time, appel-lees’ counsel continued to request compliance with the court’s order.

On June 5, 2008, appellees sought a motion for sanctions setting out appellees’ efforts to obtain Estes’ income tax documents. The motion alleged that discovery had been withheld since June 8, 2005, in direct contravention of the court’s order on November 4, 2005. Following a hearing on the motion, the court ordered that Estes produce her income tax returns within thirty days and that she provide all other documents within ten days. The trial court announced the order on July 25, 2008, and signed it July 30, 2008.

On August 1, 2008, Estes filed a request for a ten-day extension of time to comply with the trial court’s order, stating that she was away from home and the requested documents were at her residence. At or about the same time, she filed a notice of voluntary partial dismissal, dismissing “the lost wages elements of damages that she originally sought in her complaint.” On August 11, appellees filed a motion seeking dismissal as a sanction.

Following a hearing on appellees’ motion seeking dismissal as a sanction, the trial court entered the order under review dismissing the appellant’s action. In this order, the trial court makes the following findings, in pertinent part:

Extensive testimony was given by the plaintiff and considered by the court concerning her reasons for failing to comply with the court’s order.
This case is scheduled for jury trial in less than four weeks. In over three years since the Request for Production was first filed, despite numerous letters from defense counsel, a subpoena ducus tecum, and two previous orders issued by this court compelling production of the same documents, the plaintiff has still failed to comply in any meaningful way with requests and orders for production of items which would allow opposing counsel to evaluate her claim. The court is most reluctant to enter a order of dismissal, particularly in light of the fact that the plaintiff has produced a few documents. Taking into consideration, however, the plaintiffs lack of responsiveness throughout the duration of this case, her earlier specific refusal to provide tax documents, her continuing failure to produce documents the court finds essential to the evaluation of her claims even in the face of an order providing a penalty of dismissal for non-compliance, and her testimony given at the hearing held on October 1, 2008, the court is persuaded that the plaintiff will never fully comply with the order. This case has been pending for nearly four years, with most of the delay having apparently been caused by the plaintiff. It would be unjust to force the defendant to trial later this month with no more information than the plaintiff has provided. The plaintiff has had over three years to comply with a straightforward request for production, and with the unlikelihood of plaintiff ever complying, granting a continuance at this juncture would serve no useful purpose, but rather would only serve to reward the plaintiff for her abuse of the discovery process and her intentional defiance of, or willful indifference to, the orders of the court and would continue to needlessly increase defendants’ expenditures for defense of this action.

In Mercer v. Raine, 443 So.2d 944, 945-46 (Fla.1983), the Florida Supreme Court held that a trial court’s order granting sanctions for violations of discovery rules should be reviewed using an abuse of discretion standard. The court explained: “[T]o justify reversal, it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment and not merely that the court, or another fact-finder, might have made a different factual determination.” Id. at 946. The Mercer court reasoned that such wide discretionary sanction power was necessary because “a trial judge ... sees the parties first-hand and is more fully informed of the situation ...” Id. at 945 (quoting Farish v. Lum’s, Inc., 267 So.2d 325, 327-28 (Fla.1972)); and “it is impossible to establish a rule of law for every conceivable situation which could arise in the course of a trial ... [or] in the discovery process.” Id. at 946. “[A]s Mercer makes clear, it is the responsibility of the trial court, and not the appellate courts, to manage and control the trial process, including the application of sanctions for serious abuses.” Tramel v. Bass, 672 So.2d 78, 83 (Fla. 1st DCA 1996). “Because dismissal with prejudice is a harsh sanction, it should be used only sparingly.” J.P. Morgan Chase Bank v. Combee, 883 So.2d 330, 331 (Fla. 1st DCA 2004).

Estes has the burden to demonstrate an abuse of discretion by the trial court and to present an adequate record for appellate review. Id. Without an adequate record of the proceedings below, this court cannot reasonably conclude that the trial court so misconceived the law as to require reversal. Id. Similarly, without an adequate record, Estes cannot demonstrate what arguments she presented to the trial court in order to show those arguments were properly preserved. Id. at 332; Precision Tune Auto Care, Inc. v. Radcliffe, 804 So.2d 1287, 1291 n. 2 (Fla. 4th DCA 2002) (arguments not preserved because, without transcript of hearing, there is no record they were made to the trial court).

The record before us does not contain transcripts of the hearing on the motion for sanctions in July 2008 or the hearing on the motion seeking dismissal as a sanction on October 1, 2008. Because Estes has failed to provide an adequate record “this court is unable to review the factual or legal basis for the trial court’s decision.” Rose v. Clements, 973 So.2d 529, 530 (Fla. 1st DCA 2007); see also Klette v. Klette, 785 So.2d 562, 563 (Fla. 1st DCA 2001). This is particularly true here where the trial court based its decision in part on the testimony Estes gave at the final hearing and neither a transcript of that hearing nor an approved statement of proceedings, see rule 9.200(b)(4), Florida Rules of Appellate Procedure, is included in the record on appeal. As a result, “[b]ecause the trial court’s order of dismissal comes with a presumption of correctness, without an adequate record [this court] must presume, ... that [the trial court’s order] was based on evidence adduced at the hearing.” J.P. Morgan, 883 So.2d at 332; see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

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


text:
    Michael WEIMORTS, Appellant, v. Wendy SHOCKLEY, Appellee.
    No. 1D10-2660.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Kenneth B. Bell and Robert J. Powell of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Michael Weimorts appeals an order extending a temporary injunction for protection against dating violence, entered the same day the court denied Weimorts’ motion to dismiss for improper venue. Because section 784.046, Florida Statutes (2009), providing for a protective injunction against dating violence, does not contain a special venue provision, the trial court was required to apply the general venue provision in section 47.011, Florida Statutes (2009). Barr v. Fla. Bd. of Regents, 644 So.2d 333, 335 (Fla. 1st DCA 1994). Under section 47.011, “[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located....” See Hill v. Fields, 813 So.2d 212, 213 (Fla. 2d DCA 2002) (holding that wife petitioning for domestic violence injunction was required to file in county of former husband’s residence and venue in county of wife’s residence was improper). Weimorts resides in Walton County, any cause of action accrued in Walton County, and the third option allowing venue where the property in litigation is located is not applicable. Thus, venue lies only in Walton County. As a result, the trial court reversibly erred in refusing to transfer venue from Okaloosa County, the residence of the complainant Wendy Shockley, to Walton County. Hill, 813 So.2d at 213.

REVERSED.

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

      . Subsequent to the decision in Hill, the legislature amended section 741.30, Florida Statutes, to add a special venue provision, section 741.30(l)(j), allowing a petition to be filed in the circuit where the petitioner resides. Ch. 2002-55, § 13, at 793, Laws of Fla. There is no indication by the legislature that this special venue provision applies outside chapter 741.

      . We recognize, as did the trial court, that under the instructions to family law form 12.980(n) appended to the Florida Family Law Rules of Procedure, a petitioner filing a petition for prohibition against dating violence is instructed to file the petition in the circuit where she lives. However, these instructions cannot contradict section 47.011. Barr, 644 So.2d at 335 ("[t]he general venue statute controls actions brought under the common law or under statutes not containing a specific provision respecting venue.”).


author: DAVIS, Judge.

text:
    Cartaya Chablis MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5524.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Cartaya Chablis Moore pleaded guilty to one count of grand theft. In addition to receiving a thirty-six-month period of probation to run consecutively to the prison sentence she received for violating her probation in a prior case, the trial court ordered Moore to pay $12,408 in restitution. We affirm the judgment and the probationary sentence without comment. We reverse the restitution order and remand for the trial court to conduct a new restitution hearing.

After Moore pleaded guilty, the trial court held a restitution hearing at which the State called the victim to testify regarding the value of the stolen property. Although certain items were recovered from pawn shops, many items of jewelry, clothing, and electronics were not recovered. The victim could not provide receipts for most of these items. Instead she provided testimony regarding the prices she paid for the items she purchased, estimates on the items she received as gifts, and a business card on which an employee of a jewelry store had listed the values of the pieces of jewelry she purchased from that store.

Moore objected to the testimony as hearsay, arguing that the hearsay evidence presented through the jewelry store business card and the victim’s estimates provided an insufficient basis on which the State could meet its burden of proof. Moore now argues on appeal that the trial court abused its discretion in allowing the statements to be introduced and in setting the restitution based on these hearsay statements.

The victim’s testimony regarding what the jewelry store’s employee told her regarding the estimated value of the unre-covered jewelry was improperly admitted hearsay. See M.M.S. v. State, 877 So.2d 941, 941 (Fla. 2d DCA 2004). Additionally, the victim’s testimony regarding the items she received as gifts was also insufficient to establish the items’ values because the victim did not provide testimony of her own knowledge or opinion regarding the values. See Aboyoun v. State, 842 So.2d 238, 239 (Fla. 2d DCA 2003); see also Walentukonis v. State, 932 So.2d 1136, 1137-38 (Fla. 2d DCA 2006) (Villanti, J., specially concurring) (noting that the victim is unlikely to realize what documentation is necessary to establish restitution amounts and that the restitution process could be improved if the State obtained the values of the items from the victim earlier in the trial process). We note that the trial court did not abuse its discretion in setting restitution amounts for those items for which the victim testified as to the amounts she actually paid, provided store receipts, testified regarding her own opinions of the amounts she and others paid in her presence, and testified regarding the condition of the items. See Aboyoun, 842 So.2d at 240.

Accordingly, we reverse the restitution order and remand for the trial court to conduct a new restitution hearing on the restitution amounts for the unrecovered jewelry for which values were identified based on hearsay evidence and for those items about which the victim did not testify regarding her own knowledge or her own opinion. We affirm the judgment and sentence in all other respects.

Affirmed in part, reversed in part, and remanded.

VILLANTI and MORRIS, JJ., Concur.


text:
    Rodney James MONDELLO, Appellant, v. Maria Marcela TORRES, Appellee.
    No. 4D08-4525.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.

      Eddie Stephens of Law Office of Eddie Stephens, P.A., West Palm Beach, for appellant.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.
   On Motions for ReheaRing and Clarification

POLEN, J.

We deny Husband’s motion for rehearing, grant Wife’s motion for clarification, and substitute the following for our July 21, 2010, opinion.

Rodney James Mondello (Husband) appeals the final judgment dissolving his marriage. Maria Marcela Torres (Wife) cross-appeals. We affirm in part and reverse in part.

Husband challenges the trial court’s determination that certain accounts/funds were nonmarital, and the trial court’s alleged sua sponte award of attorney’s fees. He also claims the trial court erred in awarding interest to Wife not previously requested. On cross-appeal, Wife argues the trial court erred in failing to designate two of Wife’s separately titled accounts as nonmarital, in failing to require Husband to repay a loan to Wife within the equitable distribution schedule, and in failing to value Husband’s life insurance policy. Both parties challenge the alimony award, as well as the trial court’s allocation of responsibility for Husband’s debts.

Wife was born in Colombia and had two children with her first husband. When her first husband died in 1987, she inherited all of his assets. Husband and Wife married in October of 1991. At that time, Wife had a net worth of approximately $2 million, while Husband had no assets. At the time of trial, Husband was 66 years old; Wife was 43. Husband is retired and receives $1,245 per month in social security, plus approximately $2,000 in interest from a.promissory note on a loan to a friend. Wife is a software designer for Pratt & Whitney and has a gross monthly income of $6,590. Wife worked intermittently, and raised her children for much of the marriage. Husband worked in construction for awhile, and owned a garment business in New York until 1993, when he converted his building into a low-income housing project. Wife commenced divorce proceedings in March of 2007. The disputed issues at trial were the categorization of certain assets and liabilities and Husband’s request for permanent. periodic alimony.

First, we find nc| error in the trial court’s categorizing the proceeds of Wife’s Smith Barney account as nonmarital property.

A trial court’s legal conclusion that an asset is marital or nonmarital is subject to de novo review. Gaffney v. Gaffney, 965 So.2d 1217, 1220 (Fla. 4th DCA 2007); Smith v. Smith, 971 So.2d 191, 194 (Fla. 1st DCA 2007).

Husband argues that the proceeds of Wife’s Smith Barney account should have been designated as marital property, because these monies originated from a refinance of the marital home; Wife’s accountant treated the funds as marital at trial; and there was uncontroverted evidence that the account was commingled with at least $25,000 of marital funds. Wife responds and we agree that the evidence demonstrates the account was derived from inherited funds, and there was no intent on Wife’s part to create a marital asset.

“In evaluating assets that come to one spouse by inheritance, the task for the trial court in a dissolution proceeding is to determine whether the recipient intended that the assets remain non-marital or whether the recipient’s conduct during the marriage gives rise to the presumption of a gift to the other spouse.” Lakin v. Lakin, 901 So.2d 186, 190 (Fla. 4th DCA 2005) (affirming trial court’s decision to treat accounts as marital where inherited funds were first deposited into joint account).

Wife’s accountant testified that the Smith Barney account was a marital asset, and treated it as sVch in his report. However, Wife later introduced evidence that she inherited $2 million in assets from her late husband. She then set up accounts in Panama (at Merrill Lynch and BNP Pari-bas), which were worth nearly $1 million by 1998. She later transferred these proceeds to Smith Barney in the United States. The account remained titled in Wife’s name through the parties’ marriage, creating a presumption that it was a non-marital asset. See § 61.075(6)(b)l.-2., Fla. Stat. (2008) (“ ‘Nonmarital assets’ ... include: 1. Assets acquired ... by either party prior to the marriage, ...; 2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.”).

We agree with Wife that the financial transactions that occurred just before the parties’ dissolution did not overcome this presumption. Wife loaned $200,000 to Husband’s friend, Maggie Skipper, using proceeds from her Smith Barney account. In September of 2006, the parties refinanced their marital residence and $417,000 was transferred into Wife’s account at Third Federal. Three months later, Skipper repaid her loan and the funds were placed into the Third Federal account, along with an additional repayment of $419,000 from loans the parties jointly made to Skipper. Three months after that, Wife transferred $200,000 from the Third Federal account into her Smith Barney account.

Husband contends that some of the $200,000 transferred from Third Federal to Smith Barney was the proceeds from the refinance of the marital residence. However, Wife testified that the reason why exactly $200,000 was transferred into her Smith Barney account was because this was the exact amount of the loan she previously made to Skipper. Indeed, Wife returned to her account the exact amount of the loan she made months earlier to the third party.

Even presuming that Wife made a gift to Husband, the trial court had discretion to determine that the presumption was overcome by the evidence. See Hay v. Hay, 944 So.2d 1043, 1046 (Fla. 4th DCA 2006). Where the evidence is conflicting as to whether one spouse intends to make a gift to the other, “it is the responsibility of the trial court to evaluate the weight and credibility of that testimony and to arrive at a determination.” See Marsh v. Marsh, 419 So.2d 629, 630 (Fla.1982); accord Francavilla v. Francavilla, 969 So.2d 522, 527 (Fla. 4th DCA 2007). Here, the trial court determined all credibility issues in favor of Wife. Wife testified that she kept the Smith Barney account in her name because it was inherited from her late husband and intended for her children. She claimed she intentionally kept the account separate because she feared Husband would claim the proceeds of the account. She said she did not tell Husband she had inherited any money until she had tax problems. Finally, Wife returned $200,000 to the Smith Barney account, the same figure she loaned to Skipper from this account. Wife’s conduct reflects that no gift was intended.

Husband also contends that a May 2005 deposit of $25,000 from the parties’ joint Washington Mutual account into the Smith Barney account requires a legal conclusion that the Smith Barney account is marital. However, Wife testified to no rebuttal that, two months earlier, she had loaned $25,000 from the Smith Barney account to Husband to pay bills. Wife testified that the May 2005 transfer was a repayment of the loan, for again, the exact amount of the loan was deposited back into her separate account. In any event, this court has held that, “[u]sing some portion of non-marital funds to pay marital expenses does not convert the remaining non-marital funds into a marital asset.” Lakin, 901 So.2d at 191; see also Hamilton v. Hamilton, 758 So.2d 1213, 1214 (Fla. 4th DCA 2000) (money that husband inherited retained its non-marital status when he placed funds into a separate account, even though he used funds from this inheritance for marital bills).

In short, Wife overcame any presumption that a gift was intended, and thus, the trial court properly exercised its discretion in awarding Wife all of the proceeds of this account.

We also reject Husband’s contention that the trial court erred in categorizing funds from Wife’s Panamanian account as nonmarital. Wife demonstrated that, after her late husband died and left her with nearly $2 million in assets, she opened an account at Merrill Lynch in Panama with an initial deposit of $250,000. When her financial advisor moved to BNP Paribas, Wife transferred the account to BNP. It is undisputed that only a few bank statements from the Panama accounts were able to be retrieved.

Husband contends that the trial court erred in determining the BNP account was nonmarital, where Wife produced only “partial and sporadic” statements on this account, most of which were not even identified with Wife’s name. He further notes that Wife was unable to identify the source of four deposits into the account between 1995-96, while he testified and produced documentary evidence that these deposits came from the sale of tax credits and his premarital apartment complex. Wife conceded she was not certain of the source of these four deposits, but believed they were from other accounts she held overseas. Wife testified that she kept these accounts separate and a secret from Husband, because they were inherited from her late husband and intended to benefit her children, and because she was afraid that Husband would take the money. This court must defer to the trial court on issues of credibility, which were resolved in Wife’s favor.

While Husband maintained that the account contained money he earned during the marriage, he produced no credible evidence to support this contention, or the transfer of his income into the account. The exhibit Husband relies on, Exhibit 12, is an IRS form reflecting a low-income housing credit allocation certificate. It does not show deposits into any bank account or that Husband received any funds. Husband also admitted not learning of the Panama accounts until years later, in 1999 or 2000.

Finally, the two cases cited by Husband on this issue are inapposite. See Belmont v. Belmont, 761 So.2d 406, 408 (Fla. 2d DCA 2000) (holding that annuities purchased with commingled funds from a joint account were a marital asset); Amato v. Amato, 596 So.2d 1243, 1245 (Fla. 4th DCA 1992) (holding that proceeds of a life insurance policy received by wife as sole beneficiary, but deposited directly into the parties’ joint checking account which was “regularly drawn on over the intervening years by both parties for various purposes,” constituted marital property).

Next, Husband asserts that the trial court erred in concluding that only fifty percent of the money judgments against him were marital liabilities, where Husband is jointly and severally liable for the judgments. It is undisputed that the judgments were incurred during the marriage—one for $575,431.60, rendered on October 31, 2006, and one for $1,531,848 on March 15, 2007, a week after Wife filed for dissolution. The trial court found that “one-half of the Judgment[s] is a marital debt (the other half belongs to the Husband’s partner and corporate entity). Therefore, twenty-five percent of the total Judgments would be considered a marital liability in the Wife’s column.” In response and on cross-appeal, Wife contends that the trial court erred in deeming any share of the judgments to be marital.

Pursuant to statute, “[mjarital liabilities” include “liabilities incurred during the marriage, individually by either spouse or jointly by them.” § 61.075(6)(a)l.a., Fla. Stat. Further, “joint and several liability” means that “each liable party is individually responsible for the entire obligation.” Black’s Law Dictionary 926 (17th ed. 1999). Still, the trial judge has broad discretionary authority to do equity between the parties, and may, for example, unequally distribute marital liabilities. See, e.g., § 61.075(l)(g) (permitting trial court to consider the “contribution to each spouse to ... the incurring of liabilities”) & (j) (a “catch-all” factor, allowing trial court to consider “[a]ny other factors necessary to do equity and justice between the parties”).

We agree with Wife that the record could support an unequal distribution of marital liabilities, where Husband was solely responsible for incurring the judgments against him. Indeed, there was no record evidence, other than Husband’s testimony deemed not credible by the trial judge, that marital funds were used for Husband’s businesses that resulted in these judgments. There was also no record evidence that the businesses were created for a marital purpose or to provide any benefit to Wife or the marital unit. Nor is there record evidence that Wife was aware of the activities that resulted in these judgments, or that Husband ever informed Wife that a lawsuit was filed against him. In other words, Husband deprived Wife of any opportunity to avoid the very judgments that may now be deemed marital liabilities.

Regardless, the parties and we agree that reversal is required for the trial court to explain its reasoning. See Pomeranz v. Pomeranz, 901 So.2d 895, 896 (Fla. 4th DCA 2005) (providing that “an equitable distribution plan requires ‘specific written findings of fact’ including ‘findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.’ ”) (quoting § 61.075(3)(d), Fla. Stat. (2003)). Here, the trial court did not explain why it determined fifty percent of the judgments were marital debt. The court simply noted that one half of the debt belonged to the other entities. It is possible the trial judge effectuated a compromise between the parties’ positions: Husband sought 100 percent of the value of the judgments to be declared as marital debt; Wife requested that none of the value of the judgments be deemed marital debt. However, “[t]he trial court’s valuation must be based on competent evidence and cannot be determined by “split[ting] the difference.” Augoshe v. Lehman, 962 So.2d 398, 403 (Fla. 2d DCA 2007) (quoting Solomon v. Solomon, 861 So.2d 1218, 1221 (Fla. 2d DCA 2003)).

Because the trial judge did not adequately explain the basis for the marital distribution of these liabilities, we remand for clarification or reconsideration. As discussed, the trial court is not precluded on remand from unequally distributing any marital liabilities.

Regarding alimony, the trial court ordered Wife to pay Husband a $75,000 lump sum payment. Husband argues that the trial court failed to make the requisite factual findings to justify the denial of permanent alimony. Husband further suggests that the court abused its discretion by awarding lump sum alimony instead of permanent alimony where the parties were married for 16.5 years, Husband is twenty years older than Wife, Wife has grossly higher income, and Wife’s non-marital assets totaled $1,469,320. On cross-appeal, Wife contends that the trial court erred in awarding lump sum alimony where the court did not state, and the record does not show, the existence of special circumstances to support this award.

“ ‘[T]he nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court.’ ” Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003) (quoting Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988)). This court reviews alimony awards for an abuse of discretion. Ryan v. Ryan, 927 So.2d 109, 112 (Fla. 4th DCA 2006).

In determining a proper award of alimony, a court must consider the factors set forth in section 61.08(2), Florida Statutes. When a marriage falls within the “gray area” of length, as here, no presumption in favor of or against an award of permanent alimony exists. Nichols v. Nichols, 907 So.2d 620, 622 (Fla. 4th DCA 2005) (citation omitted).

To award lump sum alimony, the trial court must find 'a “special necessity.” Rosario v. Rosario, 945 So.2d 629, 632 (Fla. 4th DCA 2006) (citing Porzio v. Porzio, 760 So.2d 1075, 1077 (Fla. 5th DCA 2000); Glazner v. Glazner, 693 So.2d 650, 652 (Fla. 5th DCA 1997); Simpson v. Simpson, 372 So.2d 526, 527 (Fla. 4th DCA 1979)). “If support is needed, there must exist unusual circumstances which would require a non-modifiable award of support. These findings of special circumstances must be something above and beyond the justifications for an award of permanent periodic alimony.” Rosario, 945 So.2d at 632 (citations omitted).

Here, the court denied Husband’s request for permanent alimony but awarded him lump sum alimony of $75,000. The final judgment states only that: “This is a marriage of approximately 16½ years, which is a gray area for permanent alimony, and the Husband has made a substantial financial contribution over the course of this marriage.” However, there is no indication the trial court considered the other statutory factors; e.g., Husband’s age and earning capacity and the couple’s standard of living. Nor did the trial court make any special findings as to why a lump-sum award was appropriate. These omissions require a reversal. Ryan, 927 So.2d at 112 (citing Nichols, 907 So.2d at 622); Rosario, 945 So.2d at 632. We therefore reverse and remand the case to the trial court to make the requisite findings. See Ryan, 927 So.2d at 112. “This does not necessarily require the trial court to alter its conclusion if it can be supported by the evidence after consideration of the requisite factors.” Id.

Next, Husband asserts that the trial court erred in awarding Wife $291,700 in interest on a promissory note between Wife and Husband, as this relief was not requested by Wife until after the presentation of evidence at trial. Husband further claims that Wife’s accountant never included the interest in his financial analysis at trial, and that Husband was not put on notice that this would be a triable issue. We agree with Wife that the issue was tried by the consent of the parties.

Florida Rule of Civil Procedure 1.190(b) states that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues.” See also Scariti v. Sabillon, 16 So.Sd 144, 145-46 (Fla. 4th DCA 2009) (“An issue is tried by consent when there is no objection to the introduction of evidence on that issue.”).

Wife testified that she loaned $500,000 to Husband during the marriage, and that he signed a promissory note. She also testified that while Husband paid some interest on the note, between 2001 and 2003, he had not paid any interest since then. Husband conceded in his pre-trial deposition that “[q]uite a bit” of interest was owed on the note. Wife also introduced into evidence exhibits showing the terms of the note and interest. Husband raised no objection to any of the subject testimony or exhibits. The record therefore reflects that the issue of interest on the note was tried by consent.

Husband’s final issue, regarding the award of attorney’s fees, is also without merit. A trial court has broad discretion in awarding attorney’s fees in a dissolution case. Rosenbloom v. Rosenbloom, 892 So.2d 531, 535 (Fla. 4th DCA 2005).

Here, the trial court awarded Wife $4,550 for having to prove certain assets— artwork she inherited from her late husband — were premarital, finding that Husband should have stipulated to this. Husband argues that the award was improper, as Rosen fees may not be awarded sua sponte by the court, i.e., without notice to the party being charged with the fees. At trial’s end, the court announced that fees would be awarded under Rosen, section 57.105, Florida Statutes, or pursuant to the court’s inherent authority. Subsequently, Wife filed a motion to determine the amount of attorney’s fees and costs, and scheduled a hearing on the motion. Husband did not contest the entitlement to fees or the amount requested. For reasons unclear in the record, the hearing was cancelled. The final judgment noted that the parties “stipulated post trial that a reasonable fee and costs to be paid” was $4,550.

“[A]s a general rule, a violation of due process occurs when a court determines matters not noticed for hearing and not the subject of appropriate pleadings.” See, e.g., Kanter v. Kanter, 850 So.2d 682, 685 (Fla. 4th DCA 2003); Fuchs v. Fuchs, 840 So.2d 449 (Fla. 4th DCA 2003); Stanley-Baker v. Baker, 789 So.2d 353 (Fla. 4th DCA 2001). In the case at bar, Wife did move for the application of fees and a post-trial hearing was noticed. It appears that the hearing was canceled because — as the final judgment stated — the parties had agreed to the reasonableness of the fee award. Indeed, Husband did not file an objection to the fee award, did not object to the cancellation of a hearing and did not himself move for a hearing. Under these facts, the fee award was not an abuse of discretion.

Turning to the cross-appeal, Wife contends that the trial court erred in failing to designate her International Finance Bank and SunTrust accounts as nonmari-tal. Wife appears to be correct in this contention. With respect to the former, Wife demonstrated that this was a trust account set up for her children, as it is titled in her name “as guardian for” her children. The SunTrust account was also separately titled. Wife claims there was no evidence of commingling or any transactions reflecting that a gift was intended to Husband. The trial judge failed to explain why either of these accounts was designated as marital assets. In her motion for rehearing, Wife asserted that these two bank accounts were held in her name only, and should be deemed nonmar-ital. Contrary to Husband’s assertions, the transcript does not reflect a stipulation by Wife’s counsel that the International Finance Bank and SunTrust accounts were marital.

Wife notes an inconsistency between the trial court’s findings and the equitable distribution schedule which reflects that the court may have intended these accounts to be deemed nonmarital (along with the accounts discussed supra). The trial court stated that it accepted Wife’s testimony that “the various bank accounts that the Wife had in her name alone, including the bank accounts in Panama and the bank accounts at Smith Barney and Merrill Lynch, were in fact premarital assets belonging to the Wife.” (emphasis added.) The court then stated that, “the monies in the various accounts in the Wife’s name will be treated as the Wife’s premarital assets in equitable distribution.” (emphasis added.) Yet, in the equitable distribution schedule, the only accounts in Wife’s name that were deemed nonmarital were the Smith Barney and BNP accounts.

In light of the foregoing, we remand for the trial court to either redesignate these accounts as nonmarital or explain the inconsistency between its findings and the equitable distribution schedule.

We also agree with Wife that the trial court erred in failing to require Husband to repay his loan to Wife within the equitable distribution schedule. As discussed supra, the trial court determined that Wife loaned $500,000 to Husband from her non-marital assets, and that Husband would be required to repay this loan, along with the nearly $300,000 in interest owed on the promissory note. Yet, the final judgment does not reflect that the loan will be repaid, and instead indicates that repayment was charged solely to Wife. Husband does not challenge these assertions.

More specifically, page one of the equitable distribution schedule treats the promissory note (and interest) as Wife’s nonmarital asset. However, page two shows an equal division of the repayment of the note/interest, such that both spouses are held responsible for the negative “marital net equity” of $791,700. Moreover, the equitable distribution schedule shows that Wife was charged with the liability of this loan. The trial judge specified categories for the “Non marital debt owed [Wife],” and “Interest due under terms of Note,” but failed to assign a value for these items. No explanation was given by the trial judge for this decision, and it contradicts his findings that Husband would be required to repay the loan.

Husband asserts that the repayment of his $500,000 loan from Wife “is credited to [Wife] by taking the liability in her share of equitable distribution, thus, reducing her equalizing payment to [Husband] by $250,000.” We do not understand this assertion, and Husband does not explain how Wife received a credit of any money within the equitable distribution schedule. Nor does Husband address the repayment of interest on the loan.

Given the record in this case, Wife makes a convincing argument that the chance of repayment on the loan through a separate suit is improbable. Wife notes the possibility that she can sue Husband on the promissory note, but asserts that this option is “unclear,” since the trial judge stated that his goal was to “have everything resolved as much as possible as to avoid further connections in the future between the parties.” Wife further notes Husband’s $2 million plus liability from the two judgments against him, and that Husband took no steps to pay these judgments between October 2006 and the dissolution judgment. She also contends it may be legally impossible to recover on the note because of the statute of limitations.

It appearing that the trial court should not have deemed repayment of the loan a marital liability, and that Wife’s equitable distribution should not have been reduced by treating repayment of the loan as a marital debt, we remand this matter to the trial court. We direct the court to either subtract the full value of the note and interest from Husband’s share of equitable distribution, or to explain the inconsistency based on record evidence.

Finally, we agree with Wife that the trial court erred in failing to value Husband’s insurance policy.

“Property valuation which is not supported by competent, substantial evidence cannot stand.” Bardowell v. Bardowell, 975 So.2d 628, 629 (Fla. 4th DCA 2008) (quoting Mullen v. Mullen, 825 So.2d 1078, 1079 (Fla. 4th DCA 2002)).

Wife argues that the trial court erred in failing to render factual findings on this asset, and in designating a $0 value for the policy in light of the unchallenged evidence as to the $10,000 value of the policy. Husband does not dispute that he had a life insurance policy with a cash surrender value of $10,000, but claims there was no “documentary evidence” of this policy. However, in Husband’s financial affidavit, filed before trial, he acknowledged that he owned a life insurance policy with a cash surrender value of $10,000. In addition, Wife’s accountant advised the court of this policy and its value.

Alternatively, Husband contends that Wife failed to preserve this issue for appellate review, because she did not argue on rehearing the lack of factual findings regarding this asset. In support of his position, Husband cites Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004), which states that “a party cannot complain on appeal about inadequate findings in a dissolution case unless the alleged defect was brought to the trial court’s attention in a motion for rehearing.” Id. at 741. The Third District noted, however, that its decision was

subject to one caveat: Since the principal reason for findings of fact in these cases is to allow for meaningful appellate review in this very important area of the law, if the court determines on its own that its review is hampered, we may, at our discretion, send the case hack for findings.

Id. at 741, n. 1 (emphasis added). Here, in any event, Wife does not simply contend that the trial court erred in failing to render factual findings on this asset. Rather, Wife contends that the trial court erred in designating a $0 value for the policy. In light of the unchallenged evidence as to the $10,000 cash surrender value of the policy, we reverse on this point, too.

In summary, we reverse and remand with directions to the trial court to clarify or reconsider its allocation of responsibility for Husband’s debts, its designation of Wife’s International Finance Bank and SunTrust accounts as marital, and its failure to require Husband to repay his loan to Wife within the equitable distribution schedule. We further direct the court to make the requisite findings for its alimony determination, and to assign a $10,000 value to Husband’s life insurance policy. In all other respects, we affirm.

Affirmed in part; Reversed in part; and Remanded.

LEVINE, J., and GREENHAWT, SUSAN F., Associate Judge, concur.

      . Wife explains that there was some misunderstanding regarding the number of entities liable under the judgments. At the end of trial, the judge stated there was one other debtor (a corporate entity); Wife’s counsel stated there were two other debtors. In the final judgment, the trial court stated the judg-merits were against Husband and two other entities: Husband’s corporate entity and an individual partner. However, as the judgments reflect, there were four defendants: Husband, another individual and two corporate entities.

      . Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

      . This court has expressed disagreement with Mathieu. See Dorsett v. Dorsett, 902 So.2d 947, 950 n. 3 (Fla. 4th DCA 2005) (stating that the " ‘[f]ailure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.' ”) (quoting Wolfe v. Nazaire, 758 So.2d 730, 733 (Fla. 4th DCA 2000) (internal citations omitted)).