author: CLARK, J.

text:
    Edward M. HOLUB, Former Husband, Appellant, v. Ursula E. HOLUB, Former Wife, Appellee.
    No. 1D10-1345.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.

      Edward M. Holub, pro se.
    Stephen S. Poche’ of Poche’ & Lorenz, LLP, Shalimar, for Appellee.
   CLARK, J.

Edward M. Holub appeals the final judgment entered February 4, 2010, in this dissolution of marriage action. The final judgment is affirmed.

The only issue which merits discussion is the trial court’s jurisdiction to rule on parenting and child support matters. The undisputed facts of the case establish that these parties were married in Austria in June 2002 and the minor child of the marriage was born there in 2002. The family moved to Louisiana in 2004. The parties traveled frequently during the times pertinent to this case, both internationally and domestically. The appellant is a self-employed videographer and graduate student who travels as necessary for his business and education.

Appellee moved to Florida with the child in 2005, and this action was commenced in the circuit court by the appellee on September 18, 2006. Apparently, the parents generally cooperated by rotating the child’s location between them during 2005 and 2006. Appellant has resided periodically in Louisiana and California, and now maintains a residence in Florida as well. The marriage was dissolved by judgment entered January 2, 2008. The order on appeal is a subsequent final judgment which addresses the financial and parenting issues of the action.

Appellant contends that the final judgment on appeal is void because the trial court lacked jurisdiction to rule on parenting and child support under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Although he never questioned the trial court’s jurisdiction prior to this appeal, subject matter jurisdiction may be challenged for the first time on appeal. See Fla. R. Civ. P. 1.140(h)(2) (“The defense of lack of subject matter jurisdiction may be raised at any time.”); In re D.N.H.W., 955 So.2d 1236 (Fla. 2d DCA 2007); Strommen v. Strommen, 927 So.2d 176 (Fla. 2d DCA 2006) (trial court’s lack of subject matter jurisdiction renders its judgments void).

The standard of review for a trial court’s interpretation of the UCCJEA is de novo. Arjona v. Torres, 941 So.2d 451 (Fla. 3d DCA 2006); Kephart v. Hadi, 932 So.2d 1086 (Fla.2006) (statutory interpretation is reviewed de novo). However, at issue in this appeal is the trial court’s application of section 61.514 to the facts presented in the pleadings and supporting documents on the record, not an interpretation of any ambiguous language in the statute. The determinative facts for purposes of the trial court’s jurisdiction under the UCCJEA are: 1) where the child “lived with a parent” for the six months preceding the filing of the petition, or 2) whether the child lived in any state other than the state in which the petition was filed for six consecutive months prior to the filing of the petition.

The record reflects no dispute of fact that the child lived with the mother in Florida for the six months prior to the commencement of the action. In paragraph 5 of her petition filed September 18, 2006, Appellee listed a Florida address as the child’s “current residence” and alleged that the minor child had resided with her in Destín, Florida, from September 2005 to “present.” Filed with the petition was Appellant’s written waiver of his ability to respond to the allegations in the petition, and Appellant filed no response to the allegations of fact in the petition. “A party is bound by his or her admissions under oath, ... [and] also bound by factual concession made by that party’s attorney before a judge in a legal proceeding.” Dicus v. Dist. Bd. of Trustees for Valencia, 734 So.2d 563, 564 (Fla. 5th DCA 1999). Likewise, the parties are bound by their pleadings-admissions in pleadings need not be proven further. City of Deland v. Miller, 608 So.2d 121 (Fla. 5th DCA 1992); Carvell v. Kinsey, 87 So.2d 577 (Fla.1956). Pursuant to rule 1.110(e), Florida Rules of Civil Procedure, “[a]verments in a pleading to which a responsive pleading is required ... are admitted when not denied in the responsive pleading.” See also Fla. Fam. L.R.P. 12.110. An “averment” is a “positive declaration or affirmation of fact.” Black’s Law Dictionary, 146 (8th ed. 2004).

The former wife’s allegation in her petition that the child had lived with her in Florida from September 2005 to the filing date of the petition was an averment in a pleading. Accordingly, Appellant’s written waiver and decision not to file a responsive pleading constituted his admission of the facts, including where the child “lived” at that early stage of the proceedings in the trial court. He is now estopped from disputing that fact and taking an inconsistent position at this stage of the litigation. See Dimino v. Farina, 572 So.2d 552, 556 (Fla. 4th DCA 1990), disapproved in part on other grounds, Babcock v. Whatmore, 707 So.2d 702 (Fla.1998); Denmark v. Michael, 737 So.2d 595 (Fla. 1st DCA 1999) (party estopped from taking subsequent inconsistent position in litigation).

Appellant did assert facts in his UCCJEA affidavit, filed in August of 2007 — a year after the filing of the initial petition which included the mother’s UC-CJEA allegations — but the facts asserted in the father’s UCCJEA affidavit did not contradict the mother’s allegations that the child “lived with” the mother in Florida nor did the father’s affidavit assert that the child had lived with him in another state for six consecutive months prior to the initial filing. This record supports the trial court’s exercise of jurisdiction pursuant to sections 61.514(l)(a), 61.514(l)(b), and 61.503(7), Florida Statutes. Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010) (child resided in several states during six months prior to commencement of the action, no court of any other state would have had jurisdiction as home state; Florida trial court had jurisdiction to make initial custody determination).

The trial court had jurisdiction over the matters ruled upon and none of the other issues raised by the appellant require reversal. Accordingly, the final order on appeal is AFFIRMED.

BENTON, C.J, and PADOVANO, J., concur.

      . The UCCJEA defines a Florida court's jurisdiction over child custody determinations thusly:
      61.514 Initial child custody jurisdiction.—
      (1) Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if:
      (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent ... continues to live in this state;
      (b) A court of another state does not have jurisdiction under paragraph (a) ...
      § 61.514(1), Fla. Stat.
      “Home state" is defined in section 61.503(7), Florida Statutes, as: "the state in which a child lived with a parent ... for at least 6 consecutive months immediately before the commencement of a child custody proceeding .... A period of temporary absence of any of the mentioned persons is part of the period.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Allen Dixon ASLINGER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3975.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.
    Allen Aslinger, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Allen Aslinger seeks review of the trial court’s summary denial of his rule 3.800 motion. We affirm the trial court’s decision that Aslinger was sentenced to a legal sentence. However, we affirm, without prejudice, to Aslinger refiling a postconviction relief motion showing entitlement to additional jail time credit.

ORFINGER, EVANDER and COHEN, JJ., concur.


text:
    Gregory Walter BOWDEN, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5161.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Gregory Walter Bowden, II, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion. In one of the claims the appellant argues that trial counsel acted ineffectively because he opened the door to testimony that the appellant was allegedly on probation in Georgia “for drugs” after the trial court, again allegedly, had ruled that the jury was not to hear such testimony. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court’s order and attachments indicate that the court did not address this claim. In response to this court’s show cause order the state has conceded that the lower court should be required to address this claim. On appeal from a summary denial of a facially sufficient motion, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2).

Because the record now before us indicates that the trial court failed to address this claim, we reverse the order as to this claim and remand for the trial court to rule on this matter and either provide record attachments that conclusively refute it, or provide the appellant an eviden-tiary hearing on this sole claim. We affirm the trial court’s denial of relief on all remaining claims in the motion.

REVERSED and REMANDED.

LEWIS, CLARK, and ROWE, JJ„ concur.


text:
    James Edward JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-102.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.

      James Edward Jones, West Palm Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Petitioner James Edward Jones filed a petition for writ of habeas corpus to challenge his continued detention under a sentence for direct criminal contempt. We treat the petition as a timely filed notice of appeal of the contempt conviction under Florida Rule of Appellate Procedure 9.040(c), and we reverse.

Jones was subpoenaed in State v. Arnold, case no. 08CF014103AMB, by counsel representing the defendant, who was being tried for first-degree murder. According to Jones’s petition, Arnold’s defense was that he had left the victim alive in Jones’s company. Jones appeared, but refused to answer defense counsel’s questions, asserting his Fifth Amendment privilege against compulsory self-incrimination.

The trial court found Jones to be in direct criminal contempt for refusing to testify and sentenced him to five months and twenty-nine days. The trial court’s three-page contempt judgment detailed how it had advised Jones that he could not assert his Fifth Amendment right and required him to answer defense counsel’s questions, but Jones refused. The trial court asked him to show cause why he should not be adjudged guilty of direct criminal contempt, and whether he had any evidence of excusing or mitigating circumstances, but he refused to respond. According to Jones’s petition, at the time, neither the trial court nor the state advised him that he would be granted immunity in connection with his testimony.

Jones filed a motion for rehearing in which he argued that the trial court overlooked the fact that only the prosecuting attorney can offer immunity, but the trial court denied the motion.

The lengthy contempt judgment was silent as to whether the state had agreed to grant Jones immunity for his testimony. While section 914.04, Florida Statutes (2010) (providing immunity for one served with a subpoena), does not appear to limit its application to persons who are subpoenaed by the state, case law makes it clear that the purpose of the statute is to aid the state; a defendant cannot immunize a witness in order to secure the witness’s compulsory testimony. Fountaine v. State, 460 So.2d 553 (Fla. 2d DCA 1984) (affirming conviction and explaining that section 914.04 is designed to insulate witness against incriminating effect of testimony compelled by the state). The Fountaine court explained as follows:

We hold that the self-executing feature of section 914.04 discussed in Jenny [v. State, 447 So.2d 1351 (Fla.1984),] is limited to cases where the state subpoenas a witness to testify before the state attorney, grand jury, or before a court having felony jurisdiction. It cannot be invoked by the defendant to immunize a witness. Therefore, we find no error in the trial court’s refusal to grant immunity to Powers [a prospective defense witness who refused to testify without a grant of immunity], who was subpoenaed to testify on behalf of the defendant. To hold otherwise would enable defendants to seriously impede the prosecution of crime.

Id. at 555. Neither do trial courts, under ordinary circumstances, have any inherent power to grant use immunity to a defense witness over the state’s objection. State v. Montgomery, 467 So.2d 387, 395 (Fla. 3d DCA 1985) (granting petition for writ of prohibition).

Because nothing in the petition or in the trial court’s contempt judgment suggested that the state had agreed to grant Jones immunity if he were to testify in the Arnold prosecution, this court issued an order to show cause. The state has responded that, in light of Fountaine and Montgomery, it cannot show cause why the petition should not be granted.

Accordingly, we reverse Jones’s conviction and sentence for direct criminal contempt in L.T. case no. 2010MM021580A, but we direct him to be released solely from his incarceration in connection with the instant contempt case.

This decision should not be interpreted to affect Jones’s custody, to the extent he is incarcerated for any other reason. Jones indicated in his petition that he was in custody in connection with an unrelated case when he was subpoenaed to testify in the Arnold prosecution; the state’s response indicates that he is being held in custody on unrelated charges in L.T. case no. 2010CF010050. We order only that Jones not be held any longer in connection with L.T. case no. 2010MM021580A.

Reversed.

HAZOURI, GERBER and LEVINE, JJ., concur.

      . The Montgomery court explained there is an exception in cases of prosecutorial misconduct: when a defendant’s right to subpoena a . witness, and to have the witness available as the defendant finds the witness, is violated by prosecutorial misconduct, then a judgment of acquittal is warranted, unless the state agrees to cure the constitutional violation with a grant of use immunity pursuant to section 914.04. 467 So.2d at 392.


text:
    Daniel FUCCI, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5186.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.
    Daniel Fucci, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to set aside his plea which this Court treats as a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), we reverse and remand for the trial court to grant the appellant leave to amend his facially insufficient motion within a reasonable period of time.

REVERSED and REMANDED with directions.

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


text:
    Tyler C. HALE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5376.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.
    Tyler C. Hale, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the denial of a motion for posteonviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing.

In his motion, Appellant alleges that counsel was ineffective for failing to convey a plea offer of three years’ imprisonment. In order to demonstrate ineffective assistance of counsel based on the failure to convey a plea offer, a defendant must prove “(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State’s plea offer would have resulted in a lesser sentence.” Cottle v. State, 733 So.2d 963, 967 (Fla.1999).

Here, Appellant made all the required allegations. The trial court denied the claim on the basis of a statement made by Appellant during the plea colloquy. The following exchange occurred after Appellant apparently learned of the three-year offer for the first time:

APPELLANT: Yeah. I mean, I just haven’t heard any — I mean, I hear the State saying that they offered me something. I haven’t heard of that. They said that I denied something in open court? I never denied any — any offer that they had given me. And I’ve — you know, I admit to the violation, but, I mean, I would be willing to get this off the docket today with six to nine months’ county jail time.
COURT: Okay. Is there any offer from the State at this point?
PROSECUTOR: No, Judge. It’s a plea straight up.

(Emphasis added.)

The trial court held that the highlighted language indicates that “[Appellant] in fact would not have accepted a three-year offer, but would have accepted an offer of six to nine months in the county jail.” We would conclude that the highlighted language is insufficient to conclusively refute Appellant’s assertion that he would have accepted a three-year plea offer. The highlighted language merely indicates an offer that Appellant was making to the State; it was not a declaration that a sentence of six to nine months was the only offer he was willing to accept.

Accordingly, we REVERSE and REMAND for the trial court to conduct an evidentiary hearing on Appellant’s claim that counsel was ineffective for failing to convey a plea offer.

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


author: SUAREZ, J.

text:
    HUDSON PROTECTION GROUP, INC., etc., Appellant, v. PCG SECURITY INT’L LLC, etc., Appellee.
    No. 3D10-1390.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Mary Ann Huey and Erica Cañas, Coral Gables for appellant.
    A. Patricia Barwick, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Hudson Protection Group, Inc. (“Hudson”), a Florida corporation and plaintiff below, seeks to reverse a non-final order granting the defendant’s, PCG Security International, LLC (“PCG”), motion to change venue and transferring the case to Hernando County. We reverse.

Hudson is a security company based in Miami-Dade County. Former co-defendant, WHLS of Florida, LLC (“WHLS”), is a for-profit charter school operator that hired Hudson to provide security for a number of its schools in Florida. Hudson subcontracted with PCG, a security services company, to provide security personnel for WHLS’s schools in west and north Florida. The subcontract agreement included a noncompete clause that prohibited PCG from directly providing any security services to any WHLS-man-aged facility for three years after termination of the subcontract agreement. PCG allegedly breached the agreement by taking over Hudson’s role as security provider for several WHLS schools in south Florida, including Miami-Dade County. Hudson sued for breach of the noncom-pete agreement in Miami-Dade County because two of the schools that PCG allegedly took over are located there. On amended complaint, PCG responded with a motion to change venue to either Her-nando County — because its registered agent and managing member is there, or to Hillsborough County — because PCG executed the contract there. At hearing, the trial court determined that the motion was brought under section 47.011, Florida Statutes (2009). PCG’s manager, Steven Lugo, testified that he signed the non-compete agreement in Hernando County, and that payments were made in Hills-borough County, where the corporation is located. Lugo also admitted, however, that PCG took over the security contracts for WHLS in Miami-Dade, Palm Beach and Broward counties at WHLS’s request. The trial court granted PCG’s motion for change of venue and transferred the case to Hernando County.

Actions must be brought in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. § 47.011. For venue purposes, a breach of contract action accrues where the contract was breached or, in other words, where the defendant failed to perform the covenant that was allegedly breached. See McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504 (Fla. 4th DCA 2010); Symbol Mattress of Fla., Inc. v. Royal Sleep Prods., Inc., 832 So.2d 233 (Fla. 5th DCA 2002); Koslow v. Sanders, 4 So.3d 37, 38 (Fla. 2d DCA 2009) (“[A] cause of action on a contract accrues for venue purposes where the breach of that contract occurs, and if a contract involves performance, the breach occurs where the defaulting party fails to perform an act that it has agreed to do.”); see also Tucker v. Fianson, 484 So.2d 1370, 1372 (Fla. 3d DCA 1986) (“[W]hile lawyer Tucker negligently shot his arrow into the air of Broward County, it did no harm and had no effect until it fell to earth in Dade. It is therefore here that he must answer for his asserted error.”).

The evidence presented by both parties at the hearing on PCG’s motion to transfer venue clearly showed that the cause of action accrued in Miami-Dade County when PGC admittedly took over security contracts for schools located there. Indeed, venue could also lie in those other Florida counties where PCG allegedly breached its noncompete agreement with Hudson. But Hudson chose Miami-Dade County, and where venue is proper in more than one county, the choice of forum rests with the plaintiff. Am. Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001 (Fla. 4th DCA 2010); P.V. Holding Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3d DCA 1998).

We reverse the non-final order granting PCG’s motion to transfer venue to Her-nando County and remand with instructions to reinstate venue in Miami-Dade County.

Reversed and remanded with directions.


author: CORTIÑAS, J.

text:
    MIAMI-DADE POLICE DEPARTMENT, Appellant, v. In re FORFEITURE OF $15,875.51, Appellee.
    No. 3D10-1942.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.

      William Monahan and Robert Knabe, for appellant.
    Carlos A. Canet, for appellee.
    Before RAMIREZ, C.J., and WELLS and CORTIÑAS, JJ.
   CORTIÑAS, J.

Miami-Dade Police Department (“MDPD”) appeals the trial court’s ruling finding no probable cause at an adversarial preliminary hearing in furtherance of a civil forfeiture motion. We reverse.

The underlying case arose when two Miami-Dade police detectives (collectively “detectives”) stopped a vehicle for having illegally tinted windows. The vehicle, later discovered to be rented, was driven by the sole occupant, Cedric Davenport (“Davenport”). As the detectives approached, they detected a strong odor of raw marijuana emanating from the vehicle. A search revealed a baggie that contained approximately one gram of marijuana on the floor of the rear passenger seat. In addition, in the vehicle’s center console, detectives discovered a black plastic bag with $10,000 in cash. The $10,000 was secured with rubber bands, in “quick count bundles,” a packaging method commonly used in the narcotics trade, and separated by denomination into groups of hundred, fifty, twenty, ten, and five dollar bills.

Davenport was placed under arrest for possession of marijuana. The search of Davenport’s person incident to the arrest uncovered an additional $5,000 in his right front pocket and $875.51 in his left front pocket. A trained narcotics canine was brought to the scene, and positively alerted to the odor of narcotics from the currency. Davenport told the detectives he acquired the currency through his role as an owner of a lawn service business, and had intended to use the entire amount to purchase a vehicle. However, Davenport was unable to provide detectives with the type or location of the vehicle, nor produce any proof or further explanation as to his purported lawn service business.

In July 2010, MDPD filed a motion for civil forfeiture of the $15,875.51 pursuant to the Florida Contraband Forfeiture Act. §§ 932.701-706, Fla. Stat. (2009). In conjunction therewith, an adversarial preliminary hearing was conducted whereby the trial court entered an order that no probable cause existed to maintain the forfeiture action, and ordered the return of the seized currency along with the payment of $500 in attorney’s fees to Davenport’s attorney. MDPD appeals this ruling.

An adversarial preliminary hearing conducted in furtherance of the Florida Contraband Forfeiture Act requires the court to make a determination as to whether sufficient probable cause exists to sustain the forfeiture proceeding in question. The plain language of section 932.703(2)(c), Florida Statutes, mandates, in pertinent part:

When an adversarial preliminary hearing is held, the court shall ... determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act.

§ 932.703(2)(e), Fla. Stat. (2009). “Quite simply, under this unambiguous language, ‘[i]f law enforcement establishes [at the adversarial preliminary hearing] probable cause to believe that the property was used in violation of the [Forfeiture] Act, the court shall authorize the seizure or continued seizure of the property.’ ” Gomez v. Vill. of Pinecrest, 41 So.3d 180, 186 (Fla.2010) (quoting Gomez v. Vill. of Pinecreset, 17 So.3d 322, 326 (Fla. 3d DCA 2009)). In furtherance of the plain statutory language, the Florida Supreme Court has recently reiterated that “[a]t the seizure stage, a seizing agency is required to establish only probable cause that the property subject to forfeiture was used in violation of the [Forfeiture] Act.” Id. at 188. Therefore, at the seizure stage of the forfeiture proceeding, “[t]he determination of probable cause ... simply involves the question of whether the information relied upon by [MDPD] is adequate and sufficiently reliable to warrant the belief by a reasonable person that a violation ha[s] occurred.” Lobo v. Metro-Dade Police Dep’t, 505 So.2d 621, 623 (Fla. 3d DCA 1987).

In order to establish probable cause, the Florida Contraband Forfeiture Act requires that the article seized be considered a “contraband article,” which is described, in part, as:

Any ... currency that was used, was attempted to be used, or was intended to be used in violation of any provision of chapter 893, if the totality of the facts presented to the state is clearly sufficient to meet the state’s burden of establishing probable cause to believe that a nexus exists between the article seized and the narcotics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction.

§ 932.701(2)(a)l, Fla. Stat. (2009) (emphasis added). “Generally, Chapter 893 of the Florida Statutes provides that it is a violation to purchase and/or sell illegal narcotics.” State Dep’t of Highway Safety & Motor Vehicles v. Holguin, 909 So.2d 956, 958 (Fla. 3d DCA 2005). In addition, courts have consistently held that seized property does not have to be traced to any specific violation or violations, but rather reasonably linked to an illegal narcotics activity. See id. at 958-59; Lobo, 505 So.2d at 623-24; see also § 932.701, Fla. Stat. (2009). “Thus, if the [currency] seized ... could be shown to be reasonably linked to narcotics activity, based on the totality of the circumstances, the [currency] would be a ‘contraband article’ subject to forfeiture.” Holguin, 909 So.2d at 958; see also Lobo, 505 So.2d at 623 (“The state can show probable cause for belief that the money herein is subject to forfeiture based upon a reasonable ground for belief that it was furnished or intended to be furnished in exchange for drugs.”).

Furthermore, courts have consistently upheld that “[t]he State’s burden of proof may be satisfied by the aggregation of facts, even if each fact, standing alone, may be insufficient to meet the government’s burden.” Holguin, 909 So.2d at 959 (citation omitted). As the totality of the circumstances should be considered, “[p]robable cause for forfeiture can be established by circumstantial evidence.” Lobo, 505 So.2d at 623. Therefore, “[t]o determine whether the information is sufficient [to establish probable cause], a court must ‘weigh not the individual layers[,] but the ‘laminated’ total.’ ” Holguin, 909 So.2d at 957-59 (quoting U.S. v. Nigro, 727 F.2d 100, 104 (6th Cir.1984)).

This case is very much like Holguin, where one factor alone did not rise to the level of probable cause, but the totality of the-circumstances clearly established probable cause to proceed with a forfeiture action. Id. In Holguin, during a traffic stop, a police officer discovered the odor of burned marijuana radiating from the stopped vehicle. Id. at 957. The defendant admitted to the police that he had smoked marijuana earlier that same day. Id. A subsequent search revealed $17,600 cash in a pocket of a pair of shorts that was separated by denomination into groups of hundred, fifty, and twenty dollar bills. Id. The defendant told police that the $17,600 was proceeds from a lawsuit, and were to be used to purchase a condominium, facts which were not verifiable. Id. Suspicious of drug activities, the police brought a trained narcotics canine to the scene, and twice alerted to the currency. Id. at 958. The State later filed a motion for forfeiture in reference to the $17,600. Id. At the adversarial probable cause hearing, expert testimony was presented that a positive alert by a trained narcotics canine indicated that currency almost certainly has recently been in the presence of a large quantity of illegal narcotics. Id. On appeal, we held that even though narcotics were not found in the vehicle to provide a direct link between the seized currency and narcotics activity, the aggregate facts were sufficient “to meet the State’s probable cause burden ... based on the totality of the circumstances.... ” Id. at 959; see also Lobo, 505 So.2d at 623 (holding probable cause was met based on the aggregate facts on the totality of the circumstances, wherein a narcotics detection canine made a positive alert to seized currency which was packaged in rubber bands and the defendant gave the police inconsistent explanations as to the money).

The totality of circumstances presented here is more than sufficient to support a finding of probable cause to sustain a forfeiture proceeding. The otherwise uncontroverted aggregate factors include the following: (1) a traffic stop based on the illegal tint of the windows of a rented vehicle, which was driven by its sole occupant, Davenport; (2) based on experience, police detected the distinct odor of raw marijuana emanating from the vehicle; (3) a search of the vehicle uncovered a baggy in the back seat of the vehicle which contained marijuana; (4) a black plastic bag containing $10,000 in cash was discovered in the vehicle’s center console; (5) a search incident to arrest uncovered additional currency in the amount of $5,000 in Davenport’s right front pocket and $875.51 in his left front pocket; (6) the currency was in “quick count bundles” commonly carried by drug dealers; (7) a trained narcotics detection canine alerted to the odor of raw marijuana on the currency, indicating that the currency had recently been in close proximity to a significant amount of illegal narcotics; and (8) Davenport gave an inconsistent explanation as to the source and use of the currency.

“While each one of these facts, standing alone, may be insufficient to meet [MDPD’s] probable cause burden, we find that the aggregation of facts based on the totality of the circumstances is legally sufficient to satisfy [MDPD’s] burden.” Holguin, 909 So.2d at 959. Therefore, probable cause existed for MDPD to seize the currency and maintain a forfeiture action.

Reversed and remanded.


author: SALTER, J.

text:
    Carlos M. ARTEAGA, Appellant, v. The STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, REGULATORY COUNCIL OF COMMUNITY ASSOCIATION MANAGERS, Appellee.
    No. 3D10-1419.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Eisinger, Brown, Lewis, Frankel, Chaiet & Krut, and Jed L. Frankel, Hollywood, for appellant.
    Garnett W. Chisenhall, Tallahassee, Chief Appellate Counsel for Department of Business and Professional Regulation, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   SALTER, J.

The appellant, a licensed community association manager, appeals adverse final orders by the Florida Department of Business and Professional Regulation (DBPR). We reverse and remand for further proceedings.

Background

In July 2009, DBPR filed an administrative complaint against the appellant alleging violations of provisions of the statutes regulating licensed community association managers. It is undisputed that the appellant received the complaint on July 24, 2009, triggering his obligation to file an election of rights form with DBPR on or before August 14, 2009. The appellant maintains that he faxed his election form on July 30, 2009, while DBPR maintains that it did not receive such a form from him.

DBPR issued a “final order on waiver” on October 27, 2009, revoking the appellant’s community association manager license and imposing other penalties as well. The appellant received this in the mail and on November 5, 2009, through counsel, moved to set aside final order. The motion included the appellant’s affidavit attesting that he had faxed the election form to DBPR on July 80, 2009, and that the transmission confirmation report feature of his fax machine did not function. Attached to the affidavit, and referred to within the affidavit, was a copy of a sworn election of rights form prepared by the appellant and requesting a hearing on the administrative complaint. The appellant’s affirmation was notarized by a Florida notary and dated July 30, 2009.

DBPR filed an opposition and response to the appellant’s motion, asserting that the election of rights form was not properly signed by the appellant and that his failure to provide a fax confirmation report warranted denial of his motion. Before the appellant’s motion was ruled upon, however, (1) the appellant filed a protective notice of appeal from the October 27, 2009, order, and (2) the parties entered into a stipulation for settlement and joint motion to vacate the October order pursuant to the settlement. The stipulation and joint motion expressly provided that they were subject to DBPR approval. Appropriate administrative staff and a DBPR attorney recommended approval of the signed stipulation and the entry of a revised final order on waiver pursuant to that stipulation. Neither the stipulation nor any rule specified any standards or criteria that would guide DBPR’s director in granting or withholding approval.

The appellant’s counsel then dismissed the protective appeal to this Court from the October order, though fully aware that DBPR had not yet vacated the order or issued the stipulated final order. Two months later DBPR’s director issued an order denying the appellant’s original motion to vacate the October order and disapproving the settlement stipulation and proposed order. The only discernible basis for the disapproval is a determination that “[n]o additional evidence has been presented to warrant the Department vacating the Final Order or accepting the Settlement Stipulation.” The order did, however, acknowledge that as a result of the negotiations between the parties, DBPR would not object to the reinstatement or refiling of the appeal from the October order. This appeal followed.

Analysis

DBPR has candidly acknowledged in its answer brief that the October 2009 “final order on waiver” failed to specify whether the appellant had any prior disciplinary history or whether the case included aggravating conditions. Under Florida Administrative Code Rule 61-20.010, such findings were necessary to support revocation of the appellant’s license. Nevertheless, DBPR maintains that the appellant is barred from raising this deficiency because he dismissed his appeal from the October order.

We disagree. DBPR’s staff plainly negotiated a proposed settlement in good faith, and its counsel recommended that settlement to the Director. Neither the April 2010 final order signed by the Director (rejecting the settlement and denying the appellant’s motion to vacate the October 2009 order) nor the DBPR’s briefs and argument before this Court have disclosed a basis for the rejection of the settlement, particularly given the admission that the first order was deficient. Nor do we agree that the appellant was properly denied an evidentiary hearing regarding his initial, allegedly-faxed, election of rights. The form and the applicable rules specifically allow an adverse party to fax its election form to DBPR in lieu of hand-delivering or mailing the form. DBPR’s faxes are no more immune from temporary malfunction than anyone else’s.

We can agree with DBPR that much time and trouble — including briefing, argument, and this opinion in this case — would have been saved if the appellant had confirmed receipt or had mailed a backup copy, return receipt requested. But he did not. Apart from a fax machine that did or did not work and a transmission report feature that may or may not have been operating, there may be a long distance record of the call from the Miami fax machine to the Tallahassee DBPR fax. The appellant’s affidavit that he sent the fax is subject to the penalties of perjury, and the notary who certified the appellant’s appearance, oath, and affirmation on the form with a date of July 30, 2009 (a timely date for the election), faces criminal penalties if she backdated such a form or executed it in blank. The cases cited by DBPR regarding the question of fact that arises when a fax transmission confirmation is provided do not hold that the absence of such a document is fatal to a sender’s claim, or that it is the only evidence available to prove that transmission occurred.

Here, as in Marrero v. Department of Professional Regulation, 622 So.2d 1109, 1113 (Fla. 1st DCA 1993), we conclude that DBPR’s exercise of discretion in denying the appellant’s motion to vacate the initial, admittedly-deficient order was inconsistent with its own disciplinary guidelines established by rule. In addition, we conclude that DBPR improperly exercised its discretion in refusing to afford the appellant an evidentiary hearing pursuant to section 120.569(1), Florida Statutes (2009), on the threshold factual question: did the appellant timely file an election of rights form with DBPR? License revocations affect important property interests. Licensees are allowed to dispute a regulatory agency’s factual allegations, and DBPR has shown no good reason why this does not extend to DBPR’s allegation that it did not receive the election of rights form.

Conclusion

For these reasons, we reverse and vacate the final order denying the appellant’s motion to vacate and disapproving the settlement and joint motion to vacate entered into by the appellant with DBPR staff and counsel. As noted, we also vacate the concededly-deficient October 2009 order. In furtherance of the strong public policy favoring compromise and settlement of disputed issues, DBPR shall have the right, but not the obligation, to approve the settlement, stipulation and agreed order entered into by the parties in February 2010, for a period of twenty days following issuance of the mandate by this Court. If a timely written approval is not forthcoming, the licensure case on remand shall include an evidentiary hearing on all issues, including timeliness and the merits of the original complaint.

Reversed, orders vacated, and remanded with instructions.

      . Fla. Admin. Code R. 28-106.111(4). The failure to file a timely written request for a hearing waives that right.

      . The final paragraph of the joint motion signed by counsel for the appellant and DBPR's attorney formally requested DBPR to grant the motion, vacate the adverse final order entered in October, and enter a stipulated order as presented by the parties with the motion.

      . § 117.105, Fla. Stat. (2009).

      . DBPR cited seven cases for the same proposition. Representative cases regarding the sufficiency of a fax confirmation report to create an issue of fact are Ebersol v. Unemployment Appeals Comm’n, 845 So.2d 945 (Fla. 5th DCA 2003), and Espanioly v. Unemployment Appeals Comm’n, 768 So.2d 1230 (Fla. 3d DCA 2000).

        .Field v. State Dep’t of Health, 902 So.2d 893, 895 (Fla. 1st DCA 2005).

      . Sun Microsystems of Cal., Inc. v. Eng’g and Mfg. Sys., C.A., 682 So.2d 219, 220 (Fla. 3d DCA 1996).


text:
    James MARTIN, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D10-692.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Rehearing Denied March 10, 2011.
    James Martin, in proper person.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for respondent.
    Before RAMIREZ, C.J., and GERSTEN and SHEPHERD, JJ.
   PER CURIAM.

James Martin petitions this Court for a writ of habeas corpus raising various claims of ineffective assistance of counsel. We conclude that all claims, except claim one, are procedurally barred as successive and/or because they previously were raised on direct appeal. See Allen v. State, 917 So.2d 906 (Fla. 3d DCA 2005). Accordingly, we deny the petition as to these claims. Further, we deny the petition with regard to claim one without prejudice to petitioner’s right to file a motion to correct a scrivener’s error in the sentence or the trial court’s right to correct the sentence on its own motion.

Petition denied.


author: WELLS, Judge.

text:
    Willie THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3276.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.

      Willie Thomas, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   WELLS, Judge.

Willie Thomas appeals an order summarily denying his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

The trial court denied the instant motion upon finding that the defendant had raised the same claim in a prior Rule 3.800 motion and that the claim was previously denied. However, the lower court failed to attach Thomas’ prior Rule 3.800 motion and the prior order denying the motion to the instant order under review. Because the record before us fails to make the required showing, we reverse the order on appeal and remand for an evidentiary hearing, or for the attachment of record excerpts conclusively showing that the appellant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.


text:
    Salomon MOLYNEAUX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2812.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Rehearing Denied March 15, 2011.
    Salomon Molyneaux, in proper person.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Behr v. Bell, 665 So.2d 1055 (Fla.1996).


text:
    J.D.L., Mother of J.G.J. and J.L.A.J., Children, Appellant, v. W.J.J., JR., Father of J.G.J. and J.L.A.J., etc. Appellee.
    No. 5D10-1850.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2011.
    Jeffrey Deen, Lori D. Loftis, and Ryan Thomas Truskoski, Office of the Criminal and Civil Regional Counsel, Altamonte Springs, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

J.D.L. appeals an order terminating her parental rights. J.D.L. was declared indigent and trial counsel was appointed to represent her below. As an indigent, J.D.L. is entitled to the preparation of a sufficiently complete record to permit proper appellate review. In this case, it is undisputed that no court reporter was present at the proceedings below and no adequate substitution for a transcript is available.

Florida Rule of Juvenile Procedure 8.255(g) requires that a record of proceedings of this nature be made. Accordingly, we are compelled to reverse the trial court’s order terminating parental rights and remand for a new trial. See M.T. v. Dep’t of Health & Rehabilitative Servs., 680 So.2d 1118 (Fla. 1st DCA 1996).

REVERSED and REMANDED.

ORFINGER, TORPY and JACOBUS, JJ. concur.


author: GRIFFIN, J.

text:
    Erin PARKINSON, as Personal Representative, etc., Petitioner, v. KIA MOTORS CORPORATION, etc., et al., Respondents.
    No. 5D10-3716.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Darryl L. Lewis and Edward V. Ricci, of Searcy, Denney, Scarola, Barnhart & Ship-ley, P.A., West Palm Beach, and Philip M. Burlington and Andrew A. Harris, of Burlington & Rockenbach, P.A., West Palm Beach, for Petitioner.
    Charles T. Wells of Gray Robinson, P.A., Orlando, and Larry M. Roth of Rumber-ger, Kirk & Caldwell, P.A., Orlando, for Respondent.
   GRIFFIN, J.

Petitioner, Erin Parkinson, as Personal Representative of the Estate of Joel Parkinson [“Petitioner”], seeks a writ of mandamus from this Court which would direct the trial court to set a trial date in the underlying wrongful death suit filed by Petitioner against Kia Motors Corporation and Kia Motors America, Inc. [“Respondents”].

The suit below arises out of an automobile crash in which the Petitioner’s decedent was killed while driving a Kia vehicle. He was stopped in a line of traffic when a motor vehicle being operated at a high rate of speed by an alcohol intoxicated driver struck the rear of the Kia. The complaint lodged claims for negligence and strict liability against each corporate defendant on the theory of enhanced injury crashworthiness as recognized by the Florida Supreme Court in D'Amario v. Ford Motor Co., 806 So.2d 424, 425 (Fla.2001).

After the pleadings were at issue, on June 24, 2010, Petitioner filed a Notice of Jury Trial. Petitioner’s notice estimated that the trial would take fifteen days. Then, on August 20, 2010, Petitioner filed motions for partial summary judgment directed to certain defenses raised by Respondents. Specifically, Petitioner contended that, pursuant to D’Amaño, certain defenses involving the negligence of others were not available in an enhanced injury crashworthiness case. Petitioner also challenged the affirmative defense that was based on a claim of reasonably safe design as measured by the Risk Utility analysis recognized in the Restatement (3d) of Torts.

These summary judgment motions appear to have stimulated Respondents to file a “Motion to Strike Notice for Trial.” In that motion, Respondents took the following position:

The Defendant, KIA AMERICA MOTORS AMERICA, INC. hereinafter (“KIA”) hereby objects to and files this Motion to Strike the Notice of Trial served by Plaintiff dated June 24, 2010. The basis for this Motion is as follows:
Under Fla. R. Civ. P. 1.440 this case is not at issue. Because this case is not at issue it cannot be set for trial. Plaintiff has a pending Motion for Partial Summary Judgment on Affirmative Defenses of Defendant, KIA MOTORS AMERICAN, INC. dated August 20, 2010 still before this Court. Rule 1.440 specifically directs: “An action is an [sic] issue after any motions directed to the last pleading served have been disposed of.” This case is not at issue therefore as a matter of law cannot be set for trial.

On September 14, 2010, the trial court entertained a hearing on Respondents’ motion to strike, at which time Respondents’ counsel re-asserted the position that, because of the pending motions for summary judgment, the court lacked the power to set the case for trial. Counsel for Petitioner correctly pointed out that a motion for summary judgment was not a motion “directed to the last pleading” and that the filing of a motion for summary judgment does not prevent a case from being at issue and ready to set for trial. Nevertheless, Respondents’ argument won the day. The trial court also commented, however, that because of the number and complexity of outstanding legal issues, the case was not “ready” for trial. The trial court said that it thought the case might be ready for trial by 2012, and offered to set a date in 2012. Understandably frustrated by these events, Petitioner seeks an order from this Court compelling the trial court to set the case for trial. Petitioner asserts that the court is obliged to schedule a case for trial when the pleadings are at issue, as this case is, and that the pending summary judgment motions do not affect the status of the pleadings. Although we agree with this position, we decline to issue the writ.

We note, at the outset, that barely a whiff of Respondents’ winning argument below that the case is not “at issue” can be detected in its appellate filings. Rather, Respondents urge here that the trial court’s conclusion that the case is not “ready” because so much important work remains to be done should be respected and the trial court should have the “discretion” to control the overall demands of his docket in deciding when a case should be tried. Putting aside the irony of this argument, we are bound to agree with it.

In Garcia v. Lincare, Inc., 906 So.2d 1268 (Fla. 5th DCA 2005), we dealt with a similar issue. There, the petitioner had filed several notices for trial after closure of the pleadings, but Respondents repeatedly objected, arguing that the case was not at issue due to “trial conflicts and outstanding discovery.” Garcia, 906 So.2d at 1268. The trial court agreed with Respondents, concluding that it would not set the case for trial until the discovery in the case had been completed. Id.

In granting mandamus relief to the Petitioner in Garcia, this Court held:

We think the trial court’s conclusion misapprehends the applicable rule. Procedural readiness for trial differs from actual readiness for trial. It is the former, coupled with a properly filed “Notice for Trial,” that imposes upon the court the mandatory duty to set a trial date. Kubera v. Fisher, 483 So.2d 836 (Fla. 2d DCA 1986).
On this issue, we agree with Judge Pa-dovano’s commentary:
A case is said to be ready for trial when it is at issue but in this context the term “ready” is used in a legal sense to mean that the pleadings are closed. It does not necessarily mean the lawyers are prepared to try the case. Often the lawyers will not be ready for trial when the date is set because they will not have completed all the discovery by then. However, the fact that discovery remains to be completed has no bearing on whether the case is at issue and it is not a valid reason to delay the entry of an order setting trial.
Philip J. Padovano, Florida Civil Practice, § 15.2 (2004-2005 ed.).
* * *
In ruling as we have today, we emphasize that the trial court has discretion to determine which date is chosen for the trial. In doing so, the court may of course consider such issues as discovery completion, availability of witnesses and counsel, and the court’s own schedule. Moreover, the trial court has the discretion to grant continuances upon proper showing. Once the case is procedurally at issue, however, upon the filing of a proper notice for trial, the court must act upon the notice within a reasonable time and give the parties a trial date. .

Id. at 1268-1269.

Here, the trial court has not refused to set a trial date; rather, it offered to set a date in 2012, based on its conclusion that the case was complex and that many difficult and novel issues required resolution before a trial of such length could go forward. Although a delay approaching eighteen months to obtain a two-week civil trial in a circuit court in Central Florida is shocking, we have to recognize that under the new regime of ever-decreasing resources, this may be— or may become — the norm. A 2012 trial date may be unacceptable to Petitioner, but we are not in a position, at this stage, to micro-manage the scheduling of this trial. The timing of the trial is a matter left to the sound discretion of the trial court. We do not know what other matters are competing for the trial judge’s attention and how much support he has. Accordingly, we deny the petition for writ of mandamus, but admonish the trial court that it is obliged to schedule a case for trial that is at issue and properly noticed, notwithstanding pending motions for summary judgment.

Petition for Writ of Mandamus DENIED.

MONACO, C.J. and SAWAYA, J., concur.

      . In D’Amaño, the Florida Supreme Court held the following in pertinent part:
      In sum, we hold that principles of comparative fault involving the causes of the first collision do not generally apply in crashworthiness cases. Such a rule, we believe, recognizes the important distinction between fault in causing the accident and fault in causing additional or enhanced injuries as a result of a product defect, a distinction that defines and limits a manufacturer’s liability in crashworthiness cases. In such cases, the automobile manufacturer is solely responsible for the enhanced injuries to the extent the plaintiff demonstrates the existence of a defective condition and that the defect proximately caused the enhanced injuries. Thus, an automobile manufacturer who allegedly designed a defective product may not be held liable for damages caused by the initial collision and may not apportion its fault with the fault of the driver of the vehicle who caused the initial accident.
      We believe this rule will ensure both fairness in the apportionment of damages and that the jury will not be unduly confused about the issues in the case, especially in cases like those before us today, where both accidents involved drinking and driving. Because the initial collision is presumed in crashworthiness cases, the jury's focus in such cases should be on whether a defect existed and whether such defect proximately caused the enhanced injuries. Unfortunately, in the consolidated cases, the juries' focus was shifted to the conduct of the intoxicated drivers who caused the initial accidents. In light of the confusion caused by the introduction of accident-causing fault and the improper focus placed on the non-party drivers’ intoxication in each case, we conclude that both the estate and D’Amario are entitled to a new trial.

        Id. at 441-442 (footnote omitted).

      . We note that several courts within our jurisdiction act on notices for trial by setting scheduling or case management conferences during which a disclosure and discovery schedule are incorporated into an order that fixes a trial date. This procedure appears to work well and is consistent with the holding in this case.


author: JACOBUS, J.

text:
    Robert BOGERT, as attorney in fact for Dorothy Walther, Petitioner, v. Patrick WALTHER, as Trustee, etc., et al., Respondents.
    No. 5D10-3336.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.

      Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Petitioner.
    Richard S. Geller of Fishbaek Dominick, LLP, Winter Park, and Steven H. Kane, of Kane and Koltan, Attorneys at Law, Mait-land, for Respondents.
   JACOBUS, J.

Robert Bogert, as attorney-in-fact for Dorothy B. Walther, seeks certiorari review of a discovery order in which the trial court compelled his sister, Dorothy B. Walther, to produce documents relating to her personal finances and medical records. We find that the challenged order constitutes a departure from the essential requirements of the law that will cause irreparable harm to Dorothy B. Walther. We therefore grant the writ.

Mrs. Walther is 89 years old and is the beneficiary of a trust created by her husband in 1953. Her son, Patrick B. Walther, has been the trustee for the past 16 years. Robert Bogert is an attorney-in-fact for Mrs. Walther. He is also her 90-year-old brother with whom she currently lives. There has been a great deal of litigation between Mrs. Walther’s siblings and the trustee, and there are currently four cases pending in the Eighteenth Circuit regarding these parties and this trust. This particular suit was brought by two of Mrs. Walther’s other children, Katherine Walther Bain and Howard Walther, as Mrs. Walther’s attorneys-in-fact. The suit was against Mrs. Walther’s sons, Robert Walther, as contingent beneficiary of the trust, and Patrick Walther, as trustee and contingent beneficiary.

The gravamen of the suit was to remove Patrick as the trustee and to surcharge both Patrick and Robert Walther for funneling funds from the trust to themselves. The order that is the subject of the petition for certiorari arose out of a motion filed by Patrick Walther, as trustee, for payment of attorney’s fees from the trust. Mrs. Walther objected to the request, and the matter was set for hearing. Patrick filed a motion to compel discovery and a motion in limine to prohibit the introduction of “non-disclosed” evidence at the hearing on attorney’s fees. The discovery at that point had consisted only of interrogatories directed to Mrs. Walther and a notice of deposition directed to Mrs. Walther’s account manager at Morgan Stanley, which was accompanied by a subpoena duces tecum seeking Mrs. Walther’s account statements for a three-year period beginning in 2006.

Obtaining this discovery over Mrs. Walther’s objection was the purpose of Patrick’s motion to compel. However, the motion to compel far exceeded the scope of his discovery requests and sought “Dorothy Walther’s financial records from 2006 to the present,” as well as “all documents which would provide a reasonable basis to conclude that a breach of trust has occurred.” Patrick had never before made such a discovery request. In fact, there had been no request for production directed to Mrs. Walther. The request for “all documents which would provide a reasonable basis to conclude that a breach of trust has occurred” was actually related only to the issue of whether the trust should pay Patrick’s attorney’s fees and was the basis for the motion in limine.

After the hearing, the court entered a comprehensive order addressing Mrs. Walther’s objection to the payment of the attorney’s fees from the trust, and Patrick’s motion to compel and motion in li-mine. The order, dated August 31, 2010, provided in pertinent part:

8. Petitioner shall produce Dorothy Walther’s personal financial records in her control, custody and possession, dating from the last ten (10) years, by September 20, 2010.
4. With respect to bank and financial institution records not in Dorothy Walther’s control, custody, or possession, Petitioner shall provide co-Trustee Robert McIntosh with a signed Authorization to request such documents. In addition, this Order shall serve as authority to any bank or financial institution to honor a subpoena served by Mr. McIntosh or any party to this Action to obtain those records.
5. Petitioner’s objection to production of Dorothy Walther’s Morgan Stanley Smith Barney account records from before February 2008 is OVERRULED. By September 20, 2010, William Paynter and Morgan Stanley Smith Barney shall produce all financial records from accounts in which Dorothy Walther held an interest dated from the last ten (10) years. Mr. Paynter shall submit to continuation of the deposition on newly produced records upon proper Notice by Respondent(s) under authority of the original subpoena.
6. The Motion in Limine to Prohibit Introduction of Non-Disclosed Evidence at Hearing on Objection to Payment of Fees is DEFERRED.
7. The hearing on the Objection to Payment of Fees is continued and the Court shall defer ruling until such time as the parties have completed discovery on the issue of breach of trust, in accordance with Florida Statutes § 736.0802.
8. Petitioner shall produce all documentary evidence in its custody, control, or possession supporting its claim of a breach of trust by September 20, 2010.
11. As previously ordered, Petitioner shall provide Mr. McIntosh with any and all medical records, medical billings, physician and medical provider reports related to Dorothy Walther’s general health and competency in her care, custody or control.
13. All financial and medical records produced in this action shall remain Confidential, for litigation purposes only, and shall be disclosed only to the parties, their counsel, witnesses reasonably related to those records, and any retained experts. The records shall be returned to Ms. Walther at the conclusion of the litigation, including any appeals, or destroyed upon agreement of the parties or by further order of this Court.

An appellate court will grant a cer-tiorari petition to quash a discovery order when the order departs from the essential requirements of the law and causes irreparable harm that cannot be remedied on appeal from a final order. Spry v. Prof'l Emp’r Plans, 985 So.2d 1187 (Fla. 1st DCA 2008). The production of financial records that are not relevant can cause irreparable harm to a person forced to disclose them. Id. at 1188; see also Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189 (Fla.2003). This court has previously granted certiorari relief to parties ordered to produce voluminous financial records that were unlikely to lead to the discovery of relevant and admissible evidence, particularly where there were no rulings on the parties’ objections. See, e.g., Life Care Ctrs. of Am. v. Reese, 948 So.2d 830 (Fla. 5th DCA 2007).

Applying these principles, we conclude that certiorari relief is appropriate in this case. The trial court’s order required the production of voluminous financial and medical records, well beyond what was ever requested in discovery. For example, the financial records ordered to be produced were for a far greater time period than requested, and the order failed to define “personal financial records,” which could include virtually anything of a financial nature, even checks written at the grocery store. The order was likewise overbroad with regard to the production of medical records and did not delimit a time period. In addition to being overbroad and unduly burdensome, the order requires the production of documents that were never requested by any party and which were unlikely to be relevant to any of the issues in the suit.

Under these circumstances, we conclude that the discovery order departs from the essential requirements of the law and will cause harm to Mrs. Walther that is irreparable in nature. We therefore grant the petition for writ of certiorari and quash the trial court’s discovery order dated August 31, 2010.

PETITION GRANTED; ORDER QUASHED.

MONACO, C.J. and TORPY, J., concur.


text:
    SCHOOL BOARD OF SUMTER COUNTY, Appellant, v. Donald BROWN and Melanie Brown, Appellee.
    No. 5D09-1141.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.

      Michael H. Bowling, of Bells, Roper <& Kohlmyer, P. A., Orlando, for Appellant.
    Joseph H. Shaughnessy, of Morgan & Morgan, P. A., Orlando, for Appellee.
   PER CURIAM.

In this personal injury action we conclude, as did the trial judge, that the contractual discounts associated with the plaintiff/appellee’s medical bills fall within the statutory definition of “collateral sources,” and affirm. See Goble v. Frohman, 901 So.2d 830 (Fla.2005); cf. Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547 (Fla. 4th DCA 2008), review dismissed, 873 So.2d 1225 (Fla.2004).

AFFIRMED.

MONACO, C.J., EVANDER and JACOBUS, JJ., concur.


text:
    George Lee SPERDUTI, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2508.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    George L. Sperduti, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Abreau, 363 So.2d 1063 (Fla.1978) (holding failure to instruct jury on offense two or more steps removed from charged and convicted offense may be found to be harmless error).

ORFINGER, TORPY and COHEN, JJ., concur.


text:
    Daniel S. BOYLE, Appellant, v. Gertrude AGUIRRE, Appellee.
    No. 5D10-1461.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Albert D. Gibson and Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant.
    Diego Handel, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the final judgment quieting title to certain real property in favor of the appellee against the claims of her son, Daniel S. Boyle. Because it is premature, we decline to address Boyle’s argument that the trial court failed to balance the equities between the parties. The trial court expressly reserved jurisdiction to determine the issue of damages.

AFFIRMED.

MONACO, C.J., EVANDER and JACOBUS, JJ., concur.


text:
    John Tyrone WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2077.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    John T. Williams, Carabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. We affirm Williams’ conviction and sentence, but remand for correction of a scrivener’s error in the written judgment, which mistakenly reflects a conviction for carjacking with a firearm rather than simple carjacking.

AFFIRMED; REMANDED for Correction of Scrivener’s Error.

GRIFFIN, EVANDER and COHEN, JJ., concur.


author: ORFINGER, J. SAWAYA, J.,

text:
    UNIVERSAL CITY DEVELOPMENT PARTNERS, LTD., Petitioner, v. Michael PUPILLO, etc., et al., Respondent.
    No. 5D10-2491.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.

      Nicholas D. Freeman, of Wilson Elser Moskowitz Edelman & Dicker LLP, Orlando, for Petitioner.
    Nicholas A. Shannin, of Page, Eichen-blatt, Bernbaum & Bennett, P.A., Orlando, for Respondent.
   ORFINGER, J.

Petitioner, Universal City Development Partners, Ltd., seeks certiorari review of an order denying, in part, its objection to the production of certain accident/incident reports. We grant the petition in part.

The underlying suit involves a battery claim brought by Respondent, Michael Pu-pillo, against Universal and Creed D. McClelland. In his suit, Pupillo alleged that while watching a parade at Universal Studios, McClelland, an Orlando police officer working a private security detail at Universal Studios, pushed him against a barricade, choked him, and forced him to the ground. During the course of discovery, Pupillo requested Universal to produce:

Request number 5.
A true and correct copy of any and all incident/incident [sic] report or other documents done in the ordinary course of business containing information about the incident alleged in the Complaint, completed by you, or your agents, representatives, or employees surrounding the subject incident and for three (3) years prior to the date of incident and one (1) year subsequent to the date of incident in a manner similar to that alleged in the complaint....

Universal objected to the request, arguing that the work product privilege protects its incident reports.

At the hearing on the motion, Pupillo admitted that the report concerning his incident was privileged, but argued that not all incident reports are privileged and that he was entitled to incident reports for the three years preceding his incident for any substantially similar incidents. He alleged that during his own investigation, he had discovered that McClelland had committed battery on another patron six days before the instant incident. He argued that the incident reports were relevant to his vicarious liability claim and would help him establish that Universal’s procedures for crowd control and “the way they operated their premises made it unsafe.” Finally, and most significantly, Pupillo contended that he was unable to obtain substantially equivalent material without undue hardship. The trial court agreed, and required Universal to produce the requested information after redacting all patrons’ names, addresses, and social security numbers from the reports. The instant petition followed.

Universal argues the trial court departed from the essential requirements of the law by requiring disclosure of reports that are protected by the work product privilege. We agree. Under Florida Rule of Civil Procedure 1.280(b)(3), a party may obtain discovery of an opposing party’s “documents ... prepared in anticipation of litigation ... only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” See generally S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1385 (Fla.1994). To make that showing, Pupillo argued only that information about prior incidents was within the scope of discovery, that such information is known to Universal, but not to him, and he is unable to obtain substantial equivalent material without due hardship. Thus, Pupillo contends that he was entitled to production of the incident reports. See DeBartolo-Aventura, Inc. v. Hernandez, 638 So.2d 988, 989 (Fla. 3d DCA 1994).

“The rationale supporting the work product doctrine is that ‘one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’” Deason, 632 So.2d at 1384 (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980)). If the moving party fails to show that the substantial equivalent of the material cannot be obtained by other means, the discovery will be denied. Id. at 1385. Pupillo’s showing here was insufficient. Despite his claim, Pupillo can use the ordinary tools of discovery to learn the facts of the incident that he was involved in as well as the facts of the prior incidents on the property. This can be accomplished by interrogatories and depositions directed to the defendants. The documents are privileged, not the facts about which they pertain. Pupillo may also direct discovery or public records requests to the law enforcement agencies that have jurisdiction at Universal Studios. “The fact that the incident report might yield additional information about the incident is not enough, without more, to show ‘undue hardship.’ ” Mt. Sinai Med. Ctr. v. Schulte, 546 So.2d 37, 38 (Fla. 3d DCA 1989); see generally DeBartolo-Aventura, 638 So.2d at 989-90; State Farm Fire & Cas. Co. v. Von Hohenberg, 595 So.2d 303, 304 (Fla. 3d DCA 1992); Dade County Pub. Health Trust v. Zaidman, 447 So.2d 282, 283 (Fla. 3d DCA 1983); Charles W. Ehrhardt, Florida Evidence § 502.9 (2010 ed.).

For these reasons, we grant the petition and quash the trial court’s order as to Pupillo’s request to produce number 5, but deny it in all other respects.

GRANTED in part; DENIED in part.

GRIFFIN, J., concurs.

SAWAYA, J., concurs in part and dissents in part, with opinion.

SAWAYA, J.,

concurring in part; dissenting in part.

I agree with that part of the majority opinion that denies the Petition for Certio-rari. I respectfully disagree with that part of the majority opinion that grants the Petition. If, as the majority contends, the decision whether to grant or deny certiora-ri regarding the requested incident reports is to be based on a party’s failure to meet the burden of presenting competent, substantial evidence, that failure lies on the part of Petitioner. The order we review emanates from a rehearing granted pursuant to Petitioner’s Motion for Rehearing necessitated by the failure of Petitioner’s counsel to appear at the originally scheduled hearing held some eleven months previous. The rehearing was granted to allow Petitioner an opportunity to show why the requested documents should not be disclosed. The argument advanced by Petitioner regarding the work-product privilege consists of the following statement made by Petitioner’s counsel: “Well, all incident reports are work product, Your Honor.” No testimony or evidence of any kind was submitted by Petitioner to support this argument, if it can be called an argument.

The courts have consistently held that the claimant of the work-product privilege has the burden of presenting competent, substantial evidence to establish that the incident reports were prepared in anticipation of litigation. In Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855 (Fla. 2d DCA 1997), for example, the court rejected an argument almost identical to the argument made by Petitioner in the instant case. In Weeks, the defendant, Wal-Mart, sought certiorari review of a trial court order compelling it to produce “[c]opies of any and all incident reports, internal memoran-da, and the like concerning similar incidents that have occurred in the Defendant’s premises in the past two years.” Id. at 856. The court denied the petition because Wal-Mart failed to present competent, substantial evidence to show the reports were prepared in anticipation of litigation, and explained:

[I]t is undisputed that Wal-Mart argued to the trial court that under the dictates of Winn-Dixie Stores, Inc. v. Nakutis, 485 So.2d 307 (Fla. 5th DCA 1988), review denied, 446 So.2d 100 (Fla.1984), and Florida Rule of Civil Procedure 1.280(b)(3), the items and information requested are nondiscoverable work product. There is no evidence of record that any documentation was presented to the trial court to support the assertion that the items requested and the statements to be produced constitute work product. In fact, Wal-Mart argues that its stated objection and assertion of work product privilege are sufficient in and of themselves to invoke the qualified privilege. It is undisputed that Wal-Mart did not present any additional argument in support of its position.
... Wal-Mart cannot make a blanket statement that these items were prepared in anticipation of litigation and are protected from disclosure without presenting evidence to support its claim. See Hartford Accident and Indemnity Co., v. McGann, 402 So.2d 1361 (Fla. 4th DCA 1981); Kenleigh Assocs. v. Harris-Intertype Corp., 279 So.2d 373 (Fla. 3d DCA 1973). The trial court cannot be held to have abused its discretion when Wal-Mart failed to meet its burden of proof. The petition is denied as to the requests for production which are the subject of this petition.

Id. The cases are legion. E.g. S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1385, 1386 (Fla.1994) (“Southern Bell argues, alternatively, that the panel recommendations are protected as work product.... Although Southern Bell has proven that the employee interviews were conducted in anticipation of litigation, it has not proven that the panel recommendations were prepared for anything other than management’s decision to consider whether [it] should discipline company employees.”); Marshalls of MA, Inc. v. Minsal, 932 So.2d 444 (Fla. 3d DCA 2006) (holding that the party asserting the work-product privilege must present substantial, competent evidence in the form of testimony or evidence to establish that the requested incident reports were prepared in anticipation of litigation); Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905, 910 (Fla. 3d DCA 2004) (holding that a party objecting to discovery on the basis of the work-product doctrine “maintains the burden to show that the materials were compiled in response to some event which foreseeably could be made the basis of a claim against the insured”); Carnival Corp. v. Romero, 710 So.2d 690, 695 (Fla. 5th DCA 1998) (“We conclude that Carnival in this case failed to carry its burden of establishing that the attorney-client and work-product privileges apply to Harris or Jamerson, and that the trial court departed from the essential requirements of law in denying the blanket, general disqualification.”); Fla. Sheriffs’ Self-Ins. Fund v. Escambia County, 585 So.2d 461, 463 (Fla. 1st DCA 1991) (holding that when objections to discovery requests are based on either the work-product doctrine or the attorney-client privilege, “the burden is upon the party asserting a privilege to establish the existence of each element of the privilege in question”); Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So.2d 192, 192 (Fla. 4th DCA 1991) (holding that the petitioner did not meet its burden of establishing that the requested materials were work product prepared in anticipation of litigation); First City Devs. of Fla., Inc. v. Hallmark of Hollywood Condo. Ass’n, Inc., 545 So.2d 502, 503 (Fla. 4th DCA 1989) (“[Ojbjections such as attorney-client privilege or work product are viable objections, although the petitioners have the burden of proving such privileges apply, should it become an issue before the trial court.”); Hartford Acc. & Indem. Co. v. McGann, 402 So.2d 1361, 1362 (Fla. 4th DCA 1981) (“If objection is made necessitating a court hearing, then in the case of a party objecting on grounds of the work product privilege, that party has the burden, first of showing the privilege.”); Surette v. Galiardo, 323 So.2d 53, 58 (Fla. 4th DCA 1975) (“Since the rules of discovery permit a party to secure the production of documents for trial, the [b]urden of establishing that the particular document is privileged and precluded from discovery [r]ests on the party asserting that privilege (unless it appears from the face of the document sought to be produced that it is privileged).”); Charles W. Erhardt, Florida Evidence, § 501.1 at 340 (2007 ed.) (“The burden is upon the party asserting a privilege to establish the existence of each element of the privilege in question.”).

Rule 1.280, Florida Rules of Civil Procedure, is derived from Federal Rule of Civil Procedure 26, and their provisions are very similar. Federal courts have interpreted Rule 26 to require the party asserting work-product privilege to produce evidence that the requested documents were prepared in anticipation of litigation. See McCoo v. Denny’s Inc., 192 F.R.D. 675, 683 (D.Kan.2000); Boyer v. Bd. of County Comm’rs, 162 F.R.D. 687 (D.Kan.1995). In McCoo, for example, the court held:

The Court is also not persuaded by Denny’s argument that the statements are protected by work product immunity. Although Denny’s has satisfied the first two elements of the work product doctrine, i.e., that the statements are documents and that they were prepared by a party, it has not satisfied the third element that they were “prepared in anticipation of litigation.” See Bohan non v. Honda Motor Co. Ltd., 127 F.R.D. 536, 538-39 (D.Kan.1989) (setting forth the elements of work product immunity); Fed.R.Civ.P. 26(b)(3).
“It is well settled that the party seeking to invoke work product immunity ... has the burden to establish all elements of the immunity ... and that this burden ‘can be met only by an evidentia-ry showing based on competent evidence.’ ” Johnson v. Gmeinder, Nos. 98-2556-GTV, 98-2585-GTV, 2000 WL 133434, at *4 (D.Kan. Jan.20, 2000) (quoting Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., No. 94-2395-GTV, 1995 WL 625962, at *7 (D.Kan. Oct.5, 1995)) (emphasis added by Johnson). Accord National Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D.Kan.1994). That burden “cannot be ‘discharged by mere conclusory or ipse dixit assertions.’ ” Johnson, 2000 WL 133434, at *4 (quoting Audiotext, 1995 WL 625962, at *7 (quoting Bourne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y.1993))).

192 F.R.D. at 683; see also von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied sub nom. Reynolds v. von Bulow by Auersperg, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987); Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir.1985) (“The burden of establishing that a document is work product is on the party who asserts the claim.... ”).

Hence, mere argument by trial counsel that the incident reports are work product does not constitute substantial, competent evidence. Unless the claimant of the privilege properly establishes that the privilege exists in the first place, the party requesting the documents has no burden to meet.

The record reveals that Respondent filed its Motion to Compel on February 13, 2008, seeking disclosure of the incident reports identified in a request to produce that Respondent filed contemporaneously with the complaint. The initial hearing on the Motion to Compel was held on July 29, 2009. No mention of the work-product privilege was made by Respondent until some eleven months later when it filed its Memorandum in support of its motion for rehearing. That Memorandum was filed six days prior to the rehearing held on June 16, 2010. When the hearing took place, not only did the Petitioner fail to present any evidence to meet its burden of proof, it made an erroneous argument when it asserted that all incident reports are privileged. The courts have held that incident reports may be work product and privileged only if they are prepared in anticipation of litigation, as specifically required by rule 1.280(b)(3), Florida Rules of Civil Procedure. See Marshalls of MA, Inc., 932 So.2d at 446 (“Incident reports may be prepared for a purpose other than in anticipation of litigation, and when this is so, the reports are not work product.”); Weeks; DeBartolo-Aventura, Inc. v. Hernandez, 638 So.2d 988, 990 n. 2 (Fla. 3d DCA 1994) (“Defendants argue that as a matter of law, incident reports are invariably work product. That is not so.”); see also Neighborhood Health P’ship, Inc. v. Peter F. Merkle M.D., P.A., 8 So.3d 1180, 1185 (Fla. 4th DCA 2009) (“We must not forget that the work product doctrine was created as a litigation privilege. It was never meant to apply to ordinary, routine, business-as-usual communications.”). Petitioner’s reliance on Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307 (Fla. 5th DCA 1983), pet. for review denied, 446 So.2d 100 (Fla.1984), a case involving reports of slip and fall accidents, is misplaced. Nakutis does not hold that all incident reports are work product, and to interpret that case as Petitioner does extends the contours of the Nakutis holding too far. See Weeks.

If the majority is going to require Respondent to meet its burden of proof, it should require Petitioner to first meet its burden of proof. Because Petitioner failed to show by competent, substantial evidence that the requested incident reports were prepared in anticipation of litigation, there was no burden for Respondent to meet, and the trial court did not depart from the essential requirements of the law in ordering disclosure of the requested incident reports. Therefore, the Petition for Cer-tiorari should be denied. In the alternative, this court should resolve the matter, as other courts have done, by remanding the case to the trial court to give both parties a fair opportunity to meet their respective burdens. See Honey Transport, Inc. v. Ruiz, 893 So.2d 661 (Fla. 4th DCA 2005); Falco v. N. Shore Labs. Corp., 866 So.2d 1255 (Fla. 1st DCA 2004).

      . Universal also objected to several other discovery requests; however, these are either not at issue in the instant petition or do not meet the standard for certiorari.

        . Testimony in the form of affidavits and depositions showing that the documents were prepared in anticipation of litigation, for example, may be considered substantial, competent evidence and are typically introduced to establish the privilege, but Petitioner presented no evidence of any kind. Cf. Orange Park Christian Acad. v. Russell, 899 So.2d 1215, 1215 (Fla. 1st DCA 2005) ("[B]oth the teacher and principal gave deposition testimony indicating that each had contemplated litigation at the time the documents were prepared.”); McRae’s, Inc. v. Moreland, 765 So.2d 196, 197 (Fla. 1st DCA 2000) ("According to the affidavit of Petitioner’s corporate director of loss prevention, statements were taken from employees in preparation for litigation by the terminated employee involved in the incident or by the girl who was changing in the dressing room at the time. These statements were maintained in McRae's corporate litigation file. Respondents presented no evidence to rebut Petitioner's affidavit.”); Nat’l Union Fire Ins. Co. v. Fla. Const., Commerce & Indus. Self Insurers Fund, 720 So.2d 535, 537 (Fla. 2d DCA 1998) ("We find unrefuted evidence in the affidavit by Dwain Darrien, National Union's claims manager, that the items were prepared in anticipation of litigation, and therefore, a limited privilege attaches to them.").


text:
    MIDWAY MINI-STORAGE, LLC, and William Todd Overcash, Appellant, v. Jennifer L. MOBLEY, f/k/a Jennifer Overcash, Appellee.
    No. 5D10-2831.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Chester Trow, of Trow & Dobbins, P.A., Ocala, for Appellant.
    Lawrence C. Callaway, III, of Klein & Klein, LLC, Ocala, for Appellee.
   PER CURIAM.

AFFIRMED. See Ashemimry v. Ba Nafa, 778 So.2d 495, 498 (Fla. 5th DCA 2001) (“where a fiduciary or trust relationship exists, an action for accounting is considered equitable in nature without regard to other considerations.”).

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    D.T., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3406.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    James S. Purdy, Public Defender, and Stephanie H. Park, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

D.T., a juvenile, appeals his adjudications of guilt regarding the charges of burglary of a structure, burglary of a conveyance, and loitering or prowling. We affirm the adjudications of guilt as to burglary of a structure and loitering or prowling without further comment. However, we reverse the adjudication of guilt as to burglary of a conveyance because the State offered no evidence that D.T. was one of the individuals seen inside or trying to enter the vehicle specified in the petition for delinquency.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, ORFINGER and COHEN, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Robert TAMERIS, Respondent.
    No. 5D10-3754.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    R.J. LaRizza, State Attorney, and Celeste Gagne, Assistant State Attorney, Day-tona Beach, for Appellant.
    Michael H. Lambert, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, the State of Florida, seeks certiorari review of a Seventh Judicial Circuit Court order denying the State’s motion to introduce similar fact evidence in cases against Robert Tameris. We agree that trial court departed from the essential requirements of the law in ruling the evidence inadmissible, and grant the petition.

Tameris is charged by information in two separate cases, Volusia County Circuit Court case numbers 2009-35625-CFAES and 2010-31317-CFAES, with two counts of unlawful sexual activity with a minor, in violation of section 794.05, Florida Statutes. In ease number 2009-35625-CFAES, the time of the charged sexual activity was between September 2007 and March 2008, when the victim was sixteen years of age and Tameris was forty-two years of age. In ease number 2010-31317-CFAES, the timing of the charged sexual activity was between July 2008 and September 2008, beginning when the victim was sixteen years of age and Tameris was forty-two years of age. The victim in the second case turned seventeen on August 16, 2008.

The State filed a notice of similar fact evidence pursuant section 90.404(2)(c), Florida Statutes, and Williams v. State, 110 So.2d 654 (Fla.1959). The motion related to each victim (with the State seeking to call the victim in the first case as a witness in the second case, and victim in the second case as a witness in the first), and to five other young women, three of whom were adults at the time of their alleged sexual encounters with Tameris. Following an evidentiary hearing on the State’s motion, the State withdrew its motion with respect to the three adult witnesses. The trial court found the testimony of all other proffered witnesses to be “strikingly similar” in all material respects, and that the testimony would normally qualify for admission under Williams. See also McLean v. State, 934 So.2d 1248 (Fla.2006) (discussing factors to consider when determining admissibility of similar fact evidence in this context). These findings are supported by the evidence.

However, the court ruled the evidence inadmissible, reasoning that it would be irrelevant to any material issue in a case involving sex with a minor charged under section 794.05, where the only issues are the age of the victim and whether the sex acts took place at all. The court reasoned that neither motive, opportunity, intent, preparation, plan, knowledge, identity, nor absence of mistake or accident would be material issues at trial — and that the evidence could not be admitted solely to corroborate a victim’s testimony that sexual activity occurred or to rebut an express or implied argument that a victim’s account was fabricated. This ruling was clearly in error. McLean, 934 So.2d at 1258 (“evidence of a collateral act of child molestation is relevant under the Williams rule to corroborate the victim’s testimony in both familial and non-familial child molestation cases”); Bruce v. State, 44 So.3d 1225, 1229 (Fla. 5th DCA 2010) (“the similar fact evidence was relevant to corroborate the victim’s testimony and rebut [a] claim of fabrication. Admitting similar fact evidence for this purpose has been addressed by a number of courts ... ”); see also, § 90.404(2)(b)l., Fla. Stat. (2010) (“evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant”).

Accordingly, we grant the petition and quash the challenged order. In doing so, we note that we have only addressed the issue of law upon which the trial court erroneously based its ruling. In future proceedings, the trial court may still address “whether the evidence is needlessly cumulative of other evidence bearing on the victim’s credibility,” and must “guard against allowing the collateral-crime testimony to become a feature of the trial.” McLean, 934 So.2d at 1262.

PETITION GRANTED; ORDER QUASHED.

LAWSON, EVANDER and COHEN, JJ., concur.

      . Certiorari review is appropriate under these circumstances. See State v. Gerry, 855 So.2d 157, 159 (Fla. 5th DCA 2003) (“when the state seeks certiorari review of the trial court’s pretrial order excluding one of its witnesses from testifying at trial, certiorari review is appropriate because the state has no right to a direct appeal in the event the defendant is acquitted”) (citations omitted).

      . We agree with the State that section 90.404(2)(b)l. applies in these cases to the testimony of the proffered witnesses who were sixteen at the time when, according to their testimony, they had sex with Tameris. The trial court reasoned that 90.404(2)(b) did not apply because the State had not charged Tameris with "child molestation" as defined in section 90.404(2)(b)2. The State correctly argues that the plain language of the statute applies where the proffered witness provides "evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation ...” irrespective of whether the state filed a "child molestation" charge in the case. Cf. Pulcini v. State, 41 So.3d 338 (Fla. 4th DCA 2010) (applying section 90.404(2)(b) to similar fact evidence in a prosecution under section 794.05). Section 90.404(2)(b)2. defines "child molestation as "conduct proscribed” by s. 794.011, s. 800.04, or s. 847.0135(5) when committed against a person 16 years of age or younger.” The statute does not, however, require that the defendant be “charged” under these sections.


text:
    Bobby J. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4122.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Bobby J. Jones, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Bobby J. Jones appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in all respects save one. We conclude that Jones is entitled to an evidentiary hearing on his claim of ineffective assistance of counsel as it relates to the failure to call Val Baker to testify for the defense. In all other respects, the denial of Jones’s post-conviction motion is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED for an evidentiary hearing.

SAWAYA, ORFINGER and EVANDER, JJ., concur.


text:
    Darrin BUGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-4469.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2011.
    Darrin Buggs, Mayo, pro se.
    Pamela J. Bondi, 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 will be filed with the lower court and be treated as the notice of appeal from the order denying ground one of the motion for post-conviction relief in Case No. 2007-CF-002827 in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, PALMER and TORPY, JJ., concur.