text:
    James HAWTHORNE, Appellant, v. Scotty J. WESLEY, Fire Equipment Service Inc., and Gevity HR, Inc., Appellees.
    No. 2D11-1446.
    District Court of Appeal of Florida, Second District.
    March 16, 2012.

      Constance Daniels, Brandon, for Appellant.
    Sidney M. Crawford and Benjamin L. Crawford of Crawford. Law Group, P.A., Lakeland, for Appellees Fire Equipment Services, Inc. and Scotty J. Wesley.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Ft. Lauder-dale, for Appellee Gevity HR, Inc.
   PER CURIAM.

James Hawthorne appeals the order dismissing his complaint against Scotty Wesley, Fire Equipment Service, and Gevity HR with prejudice. ■ We are very sympathetic to. the trial court’s and the Appel-lees’ frustration with Hawthorne’s failure to set this case for trial. But we must reverse because the trial court failed to consider the factors set forth in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), for determining whether dismissal with prejudice was warranted.

Hawthorne characterizes the order of dismissal as being for lack of prosecution, Fla. R. Civ. P. 1.420(e), but we agree with the Appellees that it was for failure to obey a court order, Fla. R. Civ. P. 1.420(b). The order of dismissal was entered as a result of the Appellees’ ore tenus motion made at the conclusion of the January 25, 2011, hearing on Hawthorne’s second motion for mediation. After the trial court stated that it was denying the motion for mediation, the Appellees moved to dismiss the case for noncompliance with the court’s November 9, 2010, order giving Hawthorne thirty days to move his case forward or the court would dismiss it with prejudice. The order of dismissal contains no findings of fact.

The hearing from which the November 9 order resulted was a hearing on the Appellees’ motion to dismiss for lack of prosecution. That motion was denied. However, at that hearing, after asking counsel for Hawthorne when the case was going to be moved forward, the trial court advised counsel that when it receives a notice that a case is at issue, among other things, it orders the case to mediation. The court was of the opinion that motions for mediation do not move the case forward. The court’s comments notwithstanding, counsel for Hawthorne asked the court if she could set a “hearing for the Court to send the parties to mediation.” The court stated that the appropriate procedure was for counsel to contact the court’s judicial assistant to schedule hearings. After stating that the case was “ridiculously old,” the court announced that it expected “movement” on the case within thirty days or it would enter an order dismissing the case with prejudice.

The court did not follow through with its warning. Instead, as noted, over two months later, it granted the Appellees’ ore tenus motion to dismiss for failure to comply with the November 9 order.

In Kozel, 629 So.2d at 818, the supreme court set forth a six-factor test for determining whether dismissal with prejudice is warranted:

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

“The trial court’s failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.” Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004). In addition, it is an abuse of the trial court’s discretion to dismiss an action without making

express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard. See Commonwealth Fed. Savings & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990)..... While no “magic words” are required, the trial court must make a “finding that the conduct upon which the order is based was the equivalent to willfulness or deliberate disregard.” Id.

Ham, 891 So.2d at 495-96.

Accordingly, we reverse the order dismissing Hawthorne’s complaint with prejudice and remand for proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY, WALLACE, and CRENSHAW, JJ„ Concur.

      . The ability of trial judges to dismiss a case for lack of prosecution has been significantly constrained. See Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786 (Fla.2011).

      . Although the court did not say why it was denying the Appellees' motion, we note that the motion was filed on May 17, 2010, but counsel for Hawthorne had filed a second amended motion for mediation and a notice of change of address on April 28, 2010. The Appellees’ counsel stated at the hearing that he had not received these filings.

      . The warning in the November 9 order that Hawthorne's complaint would be dismissed with prejudice if Hawthorne failed to move his case forward satisfies the notice requirement of Florida Rule of Civil Procedure 1.420(b). See Haas v. Roe, 704 So.2d 1117, 1118 (Fla. 2d DCA 1998) (citing Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 54-55 (Fla. 3d DCA 1982)).


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Gerrell SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4097.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Gerrell Smith [“Smith”] appeals his judgment and sentence for one count of aggravated battery (deadly weapon) and four counts of aggravated assault (deadly weapon). He raises several issues on appeal. We find merit in only one — that the trial court erred by entertaining and ruling on the State’s rule 3.800(a) motion to correct illegal sentences imposed on Counts II-V during the pendency of appeal.

After sentencing, Smith filed his notice of appeal on November 22, 2010. Thereafter, on April 20, 2011, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), Smith filed a motion to correct sentencing error with respect to Count I, the aggravated battery count.

On June 2, 2011, pursuant to Florida Rule of Criminal Procedure 3.800(a), the State filed a motion to correct illegal sentence with respect to each of Counts II-V, the four counts of aggravated assault. Shortly thereafter, on June 7, 2011, after hearing argument from the parties, the trial court found that the sentences for the aggravated battery count, as well as the sentence for each of the four aggravated assault counts, were illegal. The court vacated the sentences and re-sentenced Smith to fifteen years in the Department of Corrections, with a three-year mandatory minimum term on the aggravated battery count, and to twenty years in the Department of Corrections, with a twenty-year mandatory minimum term on each of the four counts of aggravated assault, to run concurrent with each other and with the sentence for the aggravated battery count.

Smith correctly asserts on appeal that the State was not permitted to file a motion to correct the illegal sentences under Florida Rule of Criminal Procedure 3.800(a) because the rule expressly forbids the filing of such a motion during the pendency of the appeal. Absent such authority, the trial court lacks jurisdiction to correct the sentence. Linnon v. State, 988 So.2d 70, 72 (Fla. 2d DCA 2008). Accordingly, we vacate the corrected sentences and remand so that the State may file its motion in compliance with the rule.

SENTENCE VACATED and REMANDED.

TORPY and LAWSON, JJ., concur.


author: COHEN, J.

text:
    France ETIENNE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-646.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

France Etienne appeals from the denial of his motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b). Etienne entered an admission to charges that he violated his community control and was sentenced to sixty months in the Department of Corrections as a youthful offender. Finding no error, we affirm.

The plea and discussion during the course of the sentencing hearing are clear that the basis for the violation of community control was being “out of place,” a violation of condition eleven, rather than the new substantive violations alleged in the affidavit of violation of community control. However, the sentencing order inadvertently omitted reference to the specific condition violated. See Manís v. State, 80 So.3d 586 (Fla. 5th DCA 2010). On remand, the trial court shall enter an amended order reflecting a violation of condition eleven.

AFFIRMED; REMANDED FOR ENTRY OF AMENDED ORDER.

ORFINGER, C.J., and MONACO, J., concur.

      . Condition eleven provides: “You will remain confined to your approved residence except one half hour before and after your approved employment, public service work or any other special activities approved by your Community Control Officer.”


author: PER CURIAM.

text:
    Vincent FOGGY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-460.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    Vincent Foggy, Sneads, 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 shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 05-2010-CF-31221-A in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, COHEN and JACOBUS, JJ„ concur.


author: NORTHCUTT, Judge.

text:
    In the Interest of N.F., a child. N.F., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D11-2320.
    District Court of Appeal of Florida, Second District.
    March 16, 2012.

      John E. Hendry, Regional Counsel, and Robert D. Rosen, Assistant Regional Counsel, Law Offices of the Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Bernie McCabe, State Attorney, Sixth Judicial Circuit, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Ap-pellee Department of Children and Family Services.
    Jennifer S. Paulin, Orlando, for Appellee Guardian ad Litem Program.
   NORTHCUTT, Judge.

On the petition of the Department of Children and Family Services, the circuit court terminated the parental rights of N.F., the mother of a three-year-old. However, at the final hearing the Department failed to prove any grounds for termination. Therefore, we reverse the termination of N.F.’s parental rights.

In September 2009, N.F. was involved in a physical altercation with her boyfriend and she was arrested and jailed. At the time of the arrest, N.F.’s young daughter was at the home of a babysitter. N.F. failed to alert the babysitter about her arrest or to arrange for the care of her child during her incarceration. The child’s paternal grandparents learned of the situation several days later, and they took her into their home. After petitioning for and obtaining a shelter order, the Department approved the paternal grandparents as custodians of the child. N.F. consented to a dependency in October 2009.

The Department offered N.F. a case plan with a goal of reunification. By June 2010 she had completed most of her required tasks. In light of her progress, her case manager conducted a home study in preparation for reunifying her with her daughter. But N.F.’s residence was found to be unsuitable because her roommate had substance abuse problems and was involved in a dependency matter in another county. At about the same time, the paternal grandparents decided that they could no longer care for N.F.’s daughter. The Department placed the child with a foster family in a non-adoptive placement. In July 2010, a new case manager was assigned to the case. She intended to recommend that the child be reunified with her mother at a status hearing scheduled for September 1, 2010.

N.F. failed to attend that hearing. The case manager contacted her the next day and met with her on September 14. N.F. was remorseful and said that she had overlooked the hearing because of her work schedule. Then, on October 6, 2010, N.F. missed a scheduled visitation with her daughter. The case manager drove to N.F.’s residence and found her asleep. When questioned about the missed visit, N.F. replied “I overslept and I took my meds, what’s the big deal?” She had been prescribed a medication containing codeine, and she recounted that she had taken one of the pills for a bad toothache.

In an October 7, 2010, written status review, the case manager recommended reunifying the mother and child after N.F. completed two weekend visits with her daughter. But on the very day that the case manager made that recommendation, the circuit court convened a hearing on its own motion “to reconsider the permanency review.” Thereafter, the court entered an order reflecting that at the hearing the Department announced its decision to change the permanency goal from reunification with the child’s mother to adoption. The order stated:

[T]he Court finds the mother has an attitude that goes beyond irresponsible. She has a lackadaisical attitude. The child is 3-years old and the mother has disappointed the child. It cannot be good for the child to have an on-again/ off-again motherhood relationship with this mother.

The court suspended N.F.’s visitation and all contact with her daughter.

On October 11, 2010, the Department filed a petition to terminate N.F.’s parental rights. The petition asserted that N.F. had materially breached her case plan, § 39.806(l)(e), Fla. Stat. (2010); that she had abandoned the child, § 39.806(l)(b); and that she had engaged in egregious conduct threatening the child’s life or well-being, § 39.806(l)(f).

The final hearing on the petition was begun in January 2011 and completed in March 2011. In the interim, N.F. was again arrested for domestic violence against her boyfriend.

Ultimately, the circuit court entered an order terminating N.F.’s parental rights based solely on section 39.806(l)(e). The order contained findings of fact that, for purposes of our discussion, we have numbered one through three. They were:

[One.] This court finds that the State has proven by clear and convincing evidence that the mother, [N.F.], had failed to substantially comply with the provisions of her case plan for a period of nine (9) months after an adjudication of dependency or placement in shelter care. The court has considered the evidence that the mother did, in fact, complete several classes included in her case plan (parenting, individual counseling, BIP [Batterers Intervention Program]). However, while the mother completed a substance abuse course, she continued to fail to appear for random, mandated screenings. The mother completed BIP and attended anger management classes, but thereafter exhibited angry and unstable language and behavior including a domestic battery arrest on the eve of her trial on the State’s termination of parental rights petition. The mother completed a parenting course but repeatedly demonstrated a lack of attachment or bonding to her child. The mother clearly has not learned from her case plan nor has she demonstrated change.
[Two.] That the mother ... deprived the child of, or allowed the child to be deprived of, necessary food, clothing, shelter, or medical treatment, or the mother ... allowed the child to live in an environment when such deprivation or environment caused the child’s physical, mental, or emotional health to be significantly impaired or in danger of being significantly impaired.
[Three.] That the child is at substantial risk of prospective neglect in that the mother, despite attending case plan courses, has not learned from them.

In our review, we are mindful that in order to terminate a parent’s rights to her child, the Department must prove the allegations of its petition by clear and convincing evidence. See J.C. v. Dep’t of Children & Family Servs., 6 So.3d 643, 648 (Fla. 2d DCA 2009) (and cases cited therein). The Florida Supreme Court has defined “clear and convincing evidence” as an “intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re Davey, 645 So.2d 398, 404 (Fla.1994). When considering a termination petition, the circuit court must first decide whether the Department proved the asserted grounds for termination by clear and convincing evidence, and then it must determine whether the manifest best interests of the child would be served by termination, again under the same evidentiary standard. See § 39.810. Finally, the Department must establish that termination of parental rights is the least restrictive means of protecting the child from harm. J.C., 6 So.3d at 643; E.E.A. v. Dep’t of Children & Family Servs., 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003).

Our standard of review in parental rights termination cases is highly deferential. “ ‘A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.’ ” R.C. v. Dep’t of Children & Family Servs., 33 So.3d 710, 714 (Fla. 2d DCA 2010) (quoting N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003)). Thus, we review the circuit court’s ruling for evidentiary support and legal correctness. D.P. v. Dep’t of Children & Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006).

After careful examination of the record, we conclude that the circuit court’s ruling in this case was not supported by the evidence or the law. Taking the court’s findings in order:

Substantial Compliance with the Case Plan (Finding One)

The circuit court’s first finding set forth above specifically addressed the ground for termination contained in section 39.806(l)(e). To support a termination on this ground, the Department must show that the child has been adjudicated dependent, that the parent has been offered a case plan, and that “the child continues to be abused, neglected, or abandoned.” § 39.806(l)(e).

Continuing abuse, neglect, or abandonment may be evidenced by a parent’s failure to “substantially comply” with her case plan for a period of nine months. Id. “‘Substantial compliance’ means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” § 39.01(73); see also R.F. v. Dep’t of Children & Family Servs., 22 So.3d 650, 654 (Fla. 2d DCA 2009); E.R. v. Dep’t of Children & Family Servs., 937 So.2d 1196, 1198 (Fla. 3d DCA 2006). Thus, failure to “substantially comply” with a case plan is a term of art for a shortcoming that bears directly on the behavior that endangered the child’s safety or well-being. Whereas a failure to “substantially comply” with a case plan can be evidence of abuse, neglect, or abandonment, the circuit court may not terminate a parent’s rights simply because he or she failed to perform tasks in the case plan. R.F., 22 So.3d at 654.

In its finding on this ground, the circuit court acknowledged that N.F. completed “several classes included in her case plan (parenting, individual counseling, [Batterer’s Intervention Program]).” In fact, at the termination hearing it was undisputed that N.F. had completed all of her case plan tasks before the Department filed its termination petition in October 2010. However, the court concluded that N.F. had not “learned from her case plan” or “demonstrated change” based on three circumstances.

First, the circuit court complained that “while the mother completed a substance abuse course, she continued to fail to appear for random, mandated screenings.” Insofar as this finding implied that N.F. had been noncompliant with this case plan task, it was contrary to the evidence. At the termination hearing, the Department presented the testimony of a counselor who conducted N.F.’s mandated drug screens. The counselor recounted that N.F. skipped several scheduled drug screens early in the dependency, in late 2009 and early 2010. Otherwise, she missed an appointment in August 2010 and was one day late for an appointment in September 2010. All told, N.F. appeared for eighteen drug screens and tested negative in all but three. In those three instances, she had been taking prescribed medication that would cause a positive test. Thus, the court’s assertion that N.F. “continued to fail to appear” for her drug screens was incorrect.

But even if the circuit court’s characterization were accurate, it could not serve as a legal basis for terminating N.F.’s parental rights. As mentioned, simply failing to complete a case plan, as such, is not ground for terminating parental rights. Rather, evidence of neglect or abuse can only be based on a failure to “substantially comply,” i.e., fail in a case plan task that bears on the circumstances that caused the creation of the plan. Here, that circumstance was N.F.’s failure to make arrangements for her daughter’s care when she was arrested. There was no allegation or evidence that N.F. had a substance abuse problem, let alone one that endangered her daughter’s safety or well-being. See R.F., 22 So.3d at 653 (reversing termination of parental rights on ground of parents’ continuing drug abuse in absence of showing that drug use harmed children); M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222 (Fla. 1st DCA 2004) (same). Therefore, the court’s implication that N.F. had not complied with mandatory drug screenings, even if true, could not legally support a termination of her parental rights.

The circuit court’s second assertion regarding N.F.’s purported noncompliance with her case plan was that, notwithstanding her completion of an anger management class and a batterer’s intervention program, she “exhibited angry and unstable language and behavior including a domestic battery arrest on the eve of her trial.” This finding, too, was inaccurate to the extent that it implied the court heard evidence of a course of angry or violent behavior. It did not. In fact, the recent domestic battery arrest was the only record suggestion that N.F. had been violent at any time since her child was sheltered in 2009. Beyond N.F.’s concession simply that she had pushed her boyfriend, the circumstances of the incident were not explored at the termination hearing.

Regardless, again, the circumstance that caused the creation of the case plan was not any alleged violence on N.F.’s part. It could not have been because there was no allegation that the child witnessed or was harmed by the incident. See R.V. v. Dep’t of Children & Family Servs., 939 So.2d 200 (Fla. 2d DCA 2006) (reversing dependency order where evidence failed to show that child witnessed and was harmed by act of domestic violence). Therefore, N.F.’s single act of pushing her boyfriend prior to the continuation of the termination hearing — an incident that could not have endangered the child because the circuit court had cut off contact between N.F. and her daughter — was not a failure to “substantially comply” with the case plan for purposes of the statute.

Finally, the circuit court complained that N.F. had completed a parenting course “but repeatedly demonstrated a lack of attachment or bonding to her child.” This finding was, plainly and simply, untrue.

At the termination hearing, the Department presented testimony from a psychologist who had evaluated N.F. in February 2010. The results of tests that he administered “suggest[ed] that the parent has a difficult time attaching,” not just to the child, but to others in general. But the psychologist did not observe the mother in the presence of her child. And, notably, he did not opine that she was not bonded with the child. At the time of the evaluation, the psychologist recommended that N.F. take a parenting course, that she complete a domestic violence program, and that she seek individual therapy. Indeed, N.F.’s case plan included those very tasks. And according to her case manager, she had completed them all before the Department filed its termination petition in October 2010.

N.F.’s therapist testified that she conducted a biophysical examination in November 2009 and recommended that N.F. begin individual therapy. After initially missing some therapy sessions, N.F. began therapy in earnest in May 2010 and had attended her sessions regularly ever since. The therapist helped N.F. work through her problems with anger, depression, manic thoughts, and lack of coping skills. At one point, the therapist recommended that N.F. take medication, and she began doing so. In a session on September 2, 2010, N.F. reported that the medication was making her drowsy but that it had been helpful in improving her mood and concentration. In November 2010, N.F. again said that the medication was making her lethargic and that she was also struggling with mood swings and concentration. At the termination hearing, the therapist confirmed that lethargy and drowsiness were known side effects of the medication N.F. was taking. The therapist did not recount observing the mother and child together, nor did she opine that N.F. was not bonded with her child. Indeed, no one at the hearing testified to any observable fact that would support a finding that N.F. “repeatedly demonstrated a lack of attachment or bonding to her child.” To the contrary, beginning at least as early as the summer of 2010 and continuing until the very day in October 2010 that the circuit court sua sponte undertook to “revisit the permanency review,” the Department recommended reunifying the child with her mother. In September 2010, N.F.’s case manager prepared a status report in which she noted that “[t]he mother has been responsible for transporting [her daughter] to all medical appointments. [The child] and her mother, [N.F.], have a close bond.” (Emphasis supplied.) In her October 7, 2010, status report, the case manager wrote that the child was crying and asking for her mother at the foster home.

Nevertheless, at the termination hearing the case manager testified at the Department’s behest that N.F. could not care for the child because “all services have already been provided” and N.F. had not been able to demonstrate a “change in behavior.” She did not detail any facts that might have explained why she had come to this opinion after recommending reunification in September and October 2010. She did not specify what “change in behavior” N.F. had failed to make, or how that failure had been manifested.

At one point during the case manager’s testimony, the Department’s attorney posed a litany of questions that simply parroted the manifest best interests factors set forth in section 39.810, Florida Statutes (2010). For example:

Q. Has the mother demonstrated the ability or disposition to provide the child with food, clothing, medical care or other remedial care recognized and permitted under state law?

See § 39.810(2). The case manager answered this and the other questions derived from section 39.810 with a simple “no.” The Department did not elicit any facts that would explain the case manager’s negative conclusions.

On cross-examination, the case manager was confronted with the fact that the termination petition, which she prepared, alleged that N.F. failed “to substantially comply with the provisions of the case plan.” She conceded in court that N.F. had actually completed all of her assigned tasks. She also acknowledged that the petition she signed alleged that N.F. had abandoned her daughter. But when repeatedly pressed to identify facts that supported the allegation, the manager finally admitted that it “would have been at shelter” in September 2009 and that after the shelter hearing N.F. had in no way abandoned her daughter.

The Department’s evidence from the guardian ad litem was equally perfunctory. The guardian who testified at the hearing had been assigned to the case after the petition for termination was filed, i.e., after the circuit court had suspended N.F.’s contact with the child, and therefore the guardian had never observed the mother and child together. The Department’s counsel asked the guardian if she had reviewed the case file, met with the child, and met with the mother, to which the guardian answered “yes.” The Department’s next question was: What is your recommendation for permanency for the child?” The guardian responded, simply, “termination of parental rights.” Again, the Department elicited no facts upon which this recommendation was grounded.

When all was said and done, the evidence reflected just three isolated missteps on N.F.’s part: She missed a hearing and a -visitation at a time when she was suffering lethargy and drowsiness from medications prescribed as part of the therapy required in her case plan, and she pushed her boyfriend when the child was not present and could not have been by virtue of the circuit court’s order preventing N.F.’s contact with her. By statutory definition, those incidents did not constitute a failure to “substantially comply” with N.F.’s case plan. They certainly did not prove that she “repeatedly demonstrated a lack of attachment or bonding to her child” and had not “learned from her case plan” or “demonstrated change.”

In short, the Department’s position amounted to nothing more than parroted statutory phrases and bald incantations of buzz words. Such conclusory assertions, devoid of factual support, were not competent substantial evidence — let alone clear and convincing evidence — of anything. See C.D. v. Dep’t of Children & Families, 974 So.2d 495, 502 (Fla. 1st DCA 2008) (deeming “hollow assertions” of caseworker and guardian ad litem unsupported by identifiable facts insufficient to support order denying motion for reunification); Norris v. Norris, 926 So.2d 485, 488 (Fla. 2d DCA 2006) (holding that parenting coordinator’s conclusory opinion unsupported by factual basis was not competent substantial evidence to support determination of child’s school placement).

Deprivation of Food, Clothing, Shelter, or Medical Treatment (Finding Two)

Parental rights may be terminated under section 39.806(l)(e) if, after a case plan has been offered, the parent continues to neglect the child. But the circuit court’s second finding quoted above was merely a restatement of the definition of neglect found in section 39.01(44). The court did not apply the definition to the facts of this case, and the established facts did not support the finding.

There was no evidence that N.F. had ever deprived her child of any need, either before the 2009 shelter petition or since. To be sure, N.F.’s failure to contact her babysitter when she was arrested in 2009 conceivably could have caused the child to be deprived of food, clothing, or shelter, but no evidence suggested that this happened. Absolutely no evidence supported a finding that the child’s “physical, mental, or emotional health” was significantly impaired by N.F.’s action.

Substantial Risk of Prospective Neglect (Finding Three)

“Prospective neglect” is generally a facet of termination sought pursuant to section 39.806(l)(c), i.é., “the parent ... engaged in conduct toward the child ... that demonstrates that the continuing involvement of the parent ... in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child.” See, e.g., R.F., 22 So.3d at 653; M.H., 866 So.2d at 222. The Department’s petition against N.F. did not allege section 39.806(l)(c) as a ground for terminating her parental rights. Due process requires that the termination petition adequately inform a parent of the Department’s claims. Generally, a trial court errs when it bases a termination on grounds not asserted in the petition. Cf. C.J. v. Dep’t of Children & Family Servs., 9 So.3d 750, 755 (Fla. 2d DCA 2009).

Here, however, the circuit court’s third finding did not expressly rely on section 39.806(l)(c). Rather, the court’s assertion that N.F. posed a danger of prospective neglect was simply an extension of its finding that N.F. had not learned from her case plan and that her rights could be terminated under section 39.806(l)(e). As mentioned, that finding was wholly unsupported by evidence.

In any event, we note that prospective neglect often is found when the parent has some ongoing problem, such as alcohol or drug addiction. See R.F., 22 So.3d at 653; M.H., 866 So.2d at 222. In this case, N.F. showed continuing issues with anger control. She was arrested for battery on her paramour twice, and the dependency petition referred to earlier, unresolved allegations of domestic violence between N.F. and the child’s father. But the Department did not allege that N.F. had ever been angry with her daughter or had inappropriate physical contact with the child. Other than one remote-in-time incident with the child’s father related in the dependency order, there was no assertion that the child had witnessed or been affected by the mother’s battery of others or by their battery of her. Cf J.C., 6 So.3d, at 651. Certainly, the mother’s second arrest for battery on her paramour was a matter of concern. But the arrest itself, without any other information about the alleged crime, its circumstances, or the legal outcome, did not provide clear and convincing evidence that the child faced “prospective neglect” in N.F.’s care.

In conclusion, neither evidence nor law supported the ground for terminating N.F.’s parental rights set out in the court’s order, section 39.806(l)(e). The court made no findings that would justify termination on the other grounds alleged in the Department’s petition, abandonment, § 39.806(l)(b); or egregious conduct, § 39.806(l)(f); nor was any evidence offered to prove those grounds.

Accordingly, we reverse the order terminating N.F.’s parental rights to her daughter, and we remand for further proceedings.

SILBERMAN, C.J., and WHATLEY, J., Concur.

      . We will not detail all the questions the Department asked the case manager based on the manifest best interest factors, but we note that they involved inquiries that basically parroted subsections (3), (4), (5), (6), and (7) of section 39.810.


author: VAN NORTWICK, J.

text:
    SUNBELT ENVIRONMENTAL, INC., and Greenwich Insurance Company, a/s/o Sunbelt Environmental, Inc., Appellants/Cross-Appellees, v. GULF COAST TRUCK & EQUIPMENT COMPANY, INC. and Wastequip Manufacturing Company, LLC, d/b/a Accurate Industries of Louisiana, Inc., Appellees/Cross-Appellants.
    No. 1D10-6079.
    District Court of Appeal of Florida, First District.
    March 19, 2012.

      Carol M. Rooney, Tampa, and Christopher J. Nicholas, Tallahassee of Butler Pappas Weihmuller Katz Craig, LLP, for Appellants/Cross-Appellees.
    Alan R. Horky of Fuller, Johnson, Ke-hoe, Horky & Rettig, LLC, Pensacola, for Appellee/Cross-Appellant Gulf Truck & Equipment Company, Inc.
    Albert J. Wollermann and Jaken E. Roane of Guilday, Tucker, Schwartz & Simpson, P.A., Tallahassee, for Appel-lee/Cross-Appellant Wastequip Manufacturing Company, LLC.
   VAN NORTWICK, J.

Sunbelt Environmental, Inc. (Sunbelt), and Greenwich Insurance Company challenge a final summary judgment entered in favor of appellees, Gulf Coast Truck & Equipment Company, Inc. (Gulf Coast) and Wastequip Manufacturing Company, LLC (Wastequip), the defendants below. Gulf Coast and Wastequip cross-appeal. Because genuine issues of material fact remain, we reverse and remand for further proceedings consistent with this opinion. Our reversal of the final summary judgment renders moot the issues raised on cross-appeal.

In the early morning of November 2, 2006, Clifford Smith was riding a bicycle on State Road 281 in Escambia County. Since the road lacked a bicycle lane, Smith was riding in the lane of traffic alongside the white boundary line. His bicycle was not equipped with a light; and Smith wore neither a helmet nor reflective clothing. He was wearing headphones. As a result, he did not hear the garbage truck which came from behind and struck him causing horrific injury. Smith survived, and, along with his wife, brought suit against the owner of the garbage truck, appellant Sunbelt. That action was settled before trial. Sunbelt filed a third party complaint against appellees, Gulf Coast, the manufacturer of the truck, and Wastequip, the installer of the tarping device which was placed on the truck to prevent debris from disbursing from the bed. Sunbelt’s complaint against Gulf Coast and Wastequip raised five causes of action: (1) contribution based on negligence of Gulf Coast, (2) contribution based on negligence of Waste-quip (the successor to the original installer, Accurate Industries), (3) strict liability of Gulf Coast, (4) strict liability of Waste-quip (as successor to Accurate Industries), and (5) breach of implied warranty of merchantability by Wastequip (as successor to Accurate Industries). The gravamen of the complaint was that the tarp unit which was installed on the truck involved in the accident rendered the truck wider than both federal and state law allow. Sunbelt asserts that the arm which extended and retracted the tarp caused the width of the truck to be too wide and that this arm caught the clothing of the cyclist, thereby causing the accident.

Following the receipt of responsive pleadings to Sunbelt’s complaint and after some discovery, Gulf Coast and Wastequip jointly moved for summary judgment. Among other things, they alleged that the negligent acts of Sunbelt’s driver violated sections 316.083 and 316.185, Florida Statutes (2006), by failing to pass at a safe distance of “not less than 3 feet” and in failing to decrease his speed as necessary in order to avoid colliding with Smith. They further alleged that these acts constituted “an unforeseeable, efficient, and intervening cause that was independent of, and not set in motion by, any alleged negligence” of Gulf Coast or Wastequip. They also asserted that Sunbelt failed to produce any record evidence that there was a defect in the vehicle; a flaw in the installation, design or manufacture of the vehicle or tarp arm; or a defect which caused or contributed to the accident. Further, they contend there is no record evidence that the tarp unit was in substantially the same condition at the time of the accident as it was at the time of delivery some six years earlier.

Sunbelt opposed the motion for summary judgment, asserting that the tarping system, as installed, increased the overall width of the vehicle beyond the legal limit. Sunbelt argued that a piece of the cyclist’s clothing was found on a bolt of the tarp arm suggesting that it was indeed the arm which made contact with the cyclist. Sunbelt also moved for a partial summary judgment in its favor.

Following a hearing, the trial court entered an order on the respective motions. The trial court made the following findings:

Sunbelt Environmental, Inc. (Sunbelt) purchased a flatbed truck from Gulf Coast Truck and Equipment in the year 2000 for use as a trash receptacle retrieval device. As part of the purchase, a tarp system was installed by Waste-quip Manufacturing, in order to ensure that the refuse once picked up did not disburse onto the highway creating a possibly dangerous situation. The facts are undisputed that the flatbed truck, without the attached tarping unit, measured a width of 96" and with the tarping unit attached measured a total width of 108" as the unit’s “side component” extended out 6" on each side for an added 12". Unfortunately, an accident occurred wherein the sides of the tarp unit hit a bicyclist and his arm was amputated. A settlement was approved between Sunbelt and the bicyclist and Sunbelt is now suing Gulf Coast Truck and Wastequip for subrogation [sic] alleging that the tarping unit was improperly placed on the flatbed when it was allowed to extend 6" from each side as opposed to 3" from each side. Gulf Coast and Waste-quip argue that the statutes are clear that a truck may have a width of 102" so that the additional 3" on each side did not make the truck illegal and therefore they should not be held liable for any damages.
Gulf Coast Truck and Wastequip [further] argue that as the truck with the tarpaulin device did not exceed 108", they are not liable since the vehicle did not exceed the maximum that it could have been had the truck component been 102" instead of 96". The Court cannot accept this argument ... The vehicle in this case is over 102" long and as such needed a special permit, unless the Florida Department of Transportation (FDOT) specifically stated that the device used in this case being 6 inches from the sides of the truck was a “necessary safety device.” There is no evidence that a specific pronouncement was made other than an officer allegedly stating that the truck would have been in compliance, “had it been 108”, when he mistakenly felt that the truck was 114". The Court does not find that this statement alone meets the burden that the statute intended. However, this begs the question of who is responsible for determining the actual width of the truck inclusive of the tarpaulin device as the statutes are clear that the responsibility is on the owner and driver of the truck to ensure the legality of the vehicle.

The trial court ruled that, because the owner of a vehicle is required to ensure that a vehicle comports with the law, neither Gulf Coast nor Wastequip could be held liable for any illegality as to the width of the truck. The trial court explained:

It is undisputed that Sunbelt replaced the tarping unit in 2006 and at that time, the implied warranty was dissolved as Sunbelt did not use either Gulf Coast Truck or Wastequip to replace the parts, but instead used its own company for the work. At that time, Sunbelt assumed the risk associated with its own labor and coupled with Florida Statutes which specifically encumber the driver and owner as the parties necessary to ensure legality of the vehicles on the road, Gulf Coast Truck and Wastequip were no longer liable to Sunbelt and the onus was on Sunbelt to determine the legality of the vehicle. Therefore, no material issue of fact remains as to liabi-lilty [sic] and since Sunbelt, alone, is responsible for the width of the tarping device after 2006, the Third Party Defendants Motion for Summary Judgment is hereby: GRANTED.

As is oft-repeated, a summary judgment should not be granted “unless the facts are so crystallized that nothing remains except questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985); see also Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095-96 (Fla. 1st DCA 1999). The Second District has stated the burden thusly:

If the record reflects the existence of any genuine issue of material fact, or the possibility of an issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.

Christian v. Overstreet Paving Co., 679 So.2d 839, 840 (Fla. 2d DCA 1996) (citing Gomes v. Stevens, 548 So.2d 1163, 1164 (Fla. 2d DCA 1989))(emphasis added); see also Coral v. Garrard Crane Serv., Inc., 62 So.3d 1270 (Fla. 2d DCA 2011).

Importantly, the issue of proximate cause is a question of fact left for the finder of fact. McCain v. Florida Power Corp., 593 So.2d 500, 504 (Fla.1992). As such, as a general rule proximate cause is not appropriately resolved at the summary judgment. Here, the liability of Gulf Coast and/or Wastequip on all counts is bound with the questions of whether (i) the length of the tarp arm in and of itself was the proximate cause of the cyclist’s injury, and (ii) the driving of the truck operator coupled with the particular conditions of the road, the cyclist’s clothing, time of day, and other conditions were the combined proximate cause of the injury. Whether the width of the truck exceeded federal or state standards is not determinative until the proximate cause of injury is found by the trier of fact.

In any event, the trial court did not actually find that the truck was illegally wide. The trial court did note that section 316.515, Florida Statutes, provides that the “total outside width of any vehicle or the load thereon may not exceed 102 inches, exclusive of safety devices determined by the department [of Transportation] to be necessary for the safe and efficient operation of motor vehicles.” (Italics added). The trial court rejected the measurement of the overall width of the truck offered by a law enforcement officer, but did not reject the implicit conclusion of the officer that the tarp unit was a necessary safety device. In fact, the trial court itself seemed to deem the tarp unit as a safety device when it found that the “tarp system was installed by Wastequip Manufacturing, in order to ensure that the refuse once picked up did not disburse onto the highway creating a possibly dangerous situation.” However, besides the opinion of the investigating law enforcement officer which the trial court deemed insufficient, as noted in that part of the order quoted above, the record is devoid of any evidence as to whether the Florida Department of Transportation has determined that a tarp unit such as the one at issue here was an approved safety device under section 316.515. Whether the tarping unit is a safety device for purposes of section 316.515 is a issue of material fact which must be resolved before it can be concluded that the truck was illegally wide at the time of accident. Of course, if the Department of Transportation has made such a determination, the tarp unit would be excluded from the measurement of the width of the truck. The conclusion that Sunbelt, as owner and driver, is solely responsible for “ensuring] the legality of the vehicle” does not establish the liability of Sunbelt without concurrent determinations that the truck was illegally wide and that the illegal width was the proximate cause of the cyclist’s injuries.

Further, an issue of fact remains as to whether the tarping unit was substantially altered by Sunbelt so as to absolve Gulf Coast and Wastequip of any liability in the manner suggested by the trial court. We note that it was the opinion of an accident reconstruction expert, whose interrogatories appear in the record, that the cyclist came into contact with a bolt on the frame of the tarp unit, and not with an arm of the unit. According to this expert, the width of the frame at the time of the accident would have been the same as the width at time of installation. Thus, a question of fact remains as to the degree of alteration, and such a factual dispute is material to the question of the proximate cause of the cyclist’s injuries.

As indicated, the trial court held as a matter of law that Gulf Coast and Waste-quip could not be liable because Sunbelt alone is responsible for the width of the truck. We do not read the statute as establishing, as a matter of law, sole liability in tort upon an owner of a truck for injury caused by operation of the truck which exceeds legal width allowances. Section 316.500, Florida Statutes, provides only that it is a violation of law for “any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, ... vehicle ... exceeding the limitations” of chapter 316, Florida Statutes.

REVERSED AND REMANDED.

DAVIS and CLARK, JJ., concur.


text:
    W.T., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D11-3953.
    District Court of Appeal of Florida, First District.
    March 19, 2012.
    Laura M. Pichardo, Community Legal Services of Mid Florida, Inc., Orlando, for Appellant.
    Michael Palecki, General Counsel, and Melissa Dinwoodie, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Reversed and remanded for further proceedings consistent with Newsome v. Agency for Persons with Disabilities, 76 So.3d 972 (Fla. 1st DCA 2011).

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


text:
    Eddie Charles WILKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3628.
    District Court of Appeal of Florida, First District.
    March 20, 2012.
    Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s finding that Appellant violated certain terms of his probation and the judgment and sentence imposed thereafter. The cause is remanded with directions to enter a corrected order revoking probation to conform with the trial court’s oral pronouncements. See Robinson v. State, 968 So.2d 339 (Fla. 1st DCA 2007) (affirming appellant’s probation revocation, but remanding with directions to enter a corrected order conforming to the trial court’s oral pronouncements).

At the conclusion of the probation revocation hearing, the trial court orally pronounced its findings that Appellant willfully violated Conditions (1), (3), (5), (15), and (20) of his probation. The court’s written order, however, indicates the court found Appellant also violated Conditions (2), (10), and (12), for which the court made no findings. Accordingly, the revocation of Appellant’s probation is affirmed, but the cause is remanded with directions to enter a corrected order conforming to the trial court’s oral pronouncements.

AFFIRMED, but REMANDED with directions consistent with this opinion.

DAVIS, THOMAS, and RAY, JJ., concur.


author: DAMOORGIAN, J.

text:
    Manuel FERNANDEZ, R.N., Appellant, v. FLORIDA DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.
    No. 4D11-496.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Kathryn L. Kasprzak, Orlando, for appellant.
    Mark Graham Hanson, Tallahassee, for appellee.
   DAMOORGIAN, J.

Manuel Fernandez appeals a final administrative order revoking his license to practice as a registered nurse in Florida for violations of sections 464.018(l)(h) and (n), Florida Statutes (2008), and concurrently rules 64B9-8.005(l)(e), (2)(c), and (2)(n), Florida Administrative Code (2006). We affirm in part and reverse in part.

By way of background, Fernandez was employed as a nurse at a health care facility where he had access to patients’ medications, including Heparin. While visiting his friend at a hospital, Fernandez took it upon himself to administer Heparin to his friend. It is undisputed that Fernandez was not employed at the hospital and was not authorized to possess or administer Heparin to his friend.

Fernandez’s actions prompted the Department of Health (“Department”) to file a three count administrative complaint against Fernandez before the Board of Nursing (“Board”). The complaint alleged that Fernandez failed to meet minimal standards of acceptable and prevailing nursing practice (Counts I and II), and Fernandez engaged in unprofessional conduct (Count III). Because Fernandez only raises issues as to Counts I and II, we affirm Count III without discussion.

Fernandez elected an informal hearing. By doing so, Fernandez admitted the factual allegations, seeking only to mitigate the penalties that might be imposed. See § 120.57(2), Fla. Stat. (2008). The Board adopted the findings of facts alleged in the complaint and concluded that Fernandez had violated sections 464.018(l)(h) and (n). The Department recommended that the Board permanently revoke Fernandez’s license and assess costs in the amount of $2,952.98. The Board agreed and entered a final order adopting the recommendation, citing sections 464.018(2) and 456.072(2), Florida Statutes (2008), as a basis for the penalty. This appeal follows.

Fernandez argues that the penalty imposed is unlawful because the Department failed to comply with the legislative requirement that there be penalty guidelines in place pursuant to section 456.079, Florida Statutes (2008), so as to alert licensees of prohibited actions and to ensure consistency in penalties imposed. See Arias v. State, Dep’t of Bus. & Prof'l Regulation, Div. of Real Estate, 710 So.2d 655, 658 (Fla. 3d DCA 1998). With respect to Count I, Fernandez is incorrect that rule 64B9-8.006, Florida Administrative .Code (2006), fails to provide penalty guidelines. However, there is merit to Fernandez’s assertion that the disciplinary guidelines do not state a range of penalties for the alleged violation in Count II.

Arias is instructive to the issues in this case. In Arias, the Department of Business and Professional Regulation filed an administrative complaint, claiming that Arias, a real estate agent, violated a statutorily imposed duty under federal and Florida law. See id. at 657. The Florida Real Estate Commission agreed and issued a final order suspending her real estate license and imposing a fine. See id. On appeal, Arias argued that the statutory provision, which created disciplinary guidelines in the context of business and professional regulation proceedings, did not specify a penalty guideline for a “duty imposed upon her ... by law.” Id. at 657-58. The Third District agreed and held that without any corresponding rule setting forth the range of penalties for the unlawful conduct proscribed in the statute, the real estate agent was not on notice of the penalties for which she could receive in an administrative proceeding. See id. at 659. The court explained that “the statutory language at issue in the instant case, combined with the total lack of guidelines for enforcement, left the licensee in a predicament ripe for arbitrary and erratic enforcement, and obviously provided no standards sufficiently governed by the legislature as to constitute a judicially reviewable discretion.” Id.

In this case, unlike Añas, Count I adequately placed Fernandez on notice of the penalties that he could face for misappropriating drugs. Fernandez was charged with failing to meet minimal standards of acceptable and prevailing nursing practice in violation of section 464.018(l)(n) because he misappropriated drugs as defined by rule 64B9-8.005(2)(c). The penalty range for misappropriating drugs is provided for in the guidelines of rule 64B9-8.006. The maximum penalty for a first time offense of misappropriating drugs is a fine, evaluation, and suspension, followed by a term of probation. See Fla. Admin. Code R. 64B9-8.006(3)(qq) (2006). However, the penalty imposed on Fernandez for Count I, permanent revocation, exceeded the penalty range specified in the guidelines.

We acknowledge that section 456.079(3), Florida Statutes (2008), gives the Board discretion to depart from the guidelines and impose a harsher penalty when there are aggravating circumstances. See 456.079(3), Fla. Stat. (2008); Lusskin v. Dep’t of Health, 866 So.2d 733, 736 (Fla. 4th DCA 2004); Arias, 710 So.2d at 659 (citing Criminal Justice Standards & Training Comm’n v. Bradley, 596 So.2d 661, 663 (Fla.1992)). The final order on review does not articulate those “[circumstances which may be considered for purposes of mitigation or aggravation of [a] penalty.” See Fla. Admin. Code R. 64B9-8.006(5)(b) (2006). Accordingly, we reverse the penalty imposed on Count I and remand for a penalty consistent with the guideline. Our holding is without prejudice to the Board imposing a harsher penalty, provided it complies with section 456.079(3) and its own guideline. See Fla. Admin. Code R. 64B9-8.006(5)(b).

With respect to Count II, we reach a different holding. Count II alleged that Fernandez failed to meet minimal standards of acceptable and prevailing nursing practice in violation of section 464.018(l)(n) because he exceeded the authority granted by his license, educational preparation, or nursing experience as defined by rule 64B9-8.005(2)(n). Fernandez correctly argues that there is no corresponding penalty guideline for the violation charged in Count II. This is precisely what occurred in Arias. Absent the penalty guidelines required by section 456.079, we are compelled by legislative mandate to reverse the penalty imposed for Count II.

Affirmed in Part; Reversed in Part and Remanded for proceedings consistent with this opinion.

WARNER and CONNER, JJ., concur.

      . Section 464.018(l)(h) states that "[ujnpro-fessional conduct, as defined by board rule” is grounds for denial of a license or disciplinary action as specified in section 456.072(2), Florida Statutes (2008). § 464.018(l)(h), Fla. Stat. (2008). Section 464.018(l)(n) states that "[flailing to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the licensee is not qualified by training or experience” is grounds for denial of a license or disciplinary action as specified in section 456.072(2). § 464.018(l)(n), Fla. Stat. (2008).

      . Section 464.018(2) states that the "board may enter an order ... imposing any of the penalties in s. 456.072(2) against any ... licensee who is found guilty of violating any provision of subsection (1) of this section....” § 464.018(2), Fla. Stat. (2008). Section 456.072(2)(b) provides for the "suspension or permanent revocation of a license” for violations of any grounds set forth in section 456.072(1) or the applicable practice act. § 456.072(2)(b), Fla. Stat. (2008).

      .Rule 64B9-8.006 provides the disciplinary guidelines, range of penalties, and aggravating and mitigating circumstances used by the Board in discharging its duties under sections 464.018 and 456.072. Fla. Admin. Code R. 64B9-8.006 (2006).

      . Rule 64B9-8.005(2)(c) provides that failing to meet minimal standards of acceptable and prevailing nursing practice includes "[m]isap-propriating drugs.” Fla. Admin. Code R. 64B9-8.005(2)(c) (2006).

      . Rule 64B9-8.005(2)(n) provides that failing to meet minimal standards of acceptable and prevailing nursing practice includes ”[p]rac-ticing beyond the scope of the licensee’s license, educational preparation or nursing experience.” Fla. Admin. Code R. 64B9-8.005(2)(n) (2006).


text:
    Dominic PASQUALE, Jr., individually, and Anthony Pasquale, individually, Appellants, v. Jack L. LOVING, individually and as Trustee, Ziad E. Habayeb, individually and as Trustee, Scott M. Stewart, individually, CitiGroup Trust, Delaware, N.A. by Karen A. Savage, as Trustee and Personal Representative, and Community Foundation of Broward, Inc., Appellees.
    No. 4D10-3893.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.

      Brian M. Beauchamp of Brian M. Beau-champ, P.A., Stuart, for appellants.
    Jack J. Aiello of Gunster, Yoakley & Stewart, P.A., West Palm Beach, and Peter J. Forman of Gutter Chaves Josepher Rubin Forman Fleisher, P.A., Boca Raton, for appellee CitiGroup Trust, Delaware, N.A.
    Peter A. Portley of Portley and Sullivan, Lighthouse Point, for appellee-Jack Loving.
    James R. George and Tattiana Brenes-Stahl of Greenberg Traurig, P.A., Fort Lauderdale, for appellee Community Foundation of Broward, Inc.
    Adrian Philip Thomas of Adrian Philip Thomas, P.A., Fort Lauderdale, for appel-lees Ziad E. Habayeb and Scott Stewart.
   PER CURIAM.

This appeal stems from a notice of administration served on the appellants, Dominic Pasquale, Jr., and his brother, Anthony Pasquale, regarding administration of the estate of Mary N. Porter (“the decedent”) based on a will executed in 2005. In response, the Pasquales filed a four-count complaint challenging the validity of “estate planning” and “testamentary documents executed after the year 2000” by the decedent. The trial court concluded that the complaint did not constitute a will contest and dismissed it with prejudice. We find that the first three counts of the complaint sufficiently demonstrated a contest of the will and reverse as to dismissal of those counts. The fourth count alleged exploitation of a vulnerable adult and was properly dismissed by the trial court for lack of standing by appellants to assert the claim.

The decedent died on August 19, 2009, at the age of 98. The notice of administration advised that the decedent’s will, dated October 10, 2005, and codicil, dated October 12, 2005, had been admitted to probate. Dominic Pasquale, Jr., was required to file an objection to the will by February 6, 2010, and Anthony Pasquale by February 13, 2010. On January 20, 2010, the Pasquales filed a complaint against the appellees, Jack R. Loving, individually and as trustee, Ziad E. Habay-eb, individually and as trustee and Scott M. Stewart, individually. Also on January 20, 2010, the Pasquales filed a notice of independent action stating that a claim had been “filed against the estate of [the decedent] regarding all Trust Documents and Amendments thereto and the probate administration,” and a declaration that the “proceeding to probate the Last Will and Testament of [the decedent]” was adversary.

On February 10, 2010, prior to an answer being filed, the Pasquales filed an amended complaint adding CitiGroup, as trustee and personal representative of the estate, as a defendant. The amended complaint also contained an allegation identifying CitiGroup, but in all other respects was identical to the original complaint. The “subject matter” of the amended complaint “involve[d] the incapacity and testamentary capacity of [the decedent].” It alleged that she executed a will in 1991, leaving substantial bequests to each Pasquale brother and an irrevocable trust in 1999 for the benefit of the Pasquales and an individual named “George Jiminez,” also listed as “George Jimenez.” The amended complaint then listed thirteen trust amendments and will codicils made by the decedent between 1991 and 2007 that resulted in revocation of the bequests to the Pa-squales and reduction of the trust res. The 2005 will was not specifically included in this list, even though it contained a provision which revoked and terminated “[a]ll interests” of the Pasquales under the trust. The Pasquales alleged in their complaint that Jimenez met the decedent in 1997 and acted in concert with Habayeb and Stewart to exert undue influence over her, causing her to modify her “testamentary plan” and “testamentary documents executed after the year 2000” for their benefit. Four counts were included. Count I alleged tortious interference with expectancy and sought a determination that all testamentary documents executed after 2000 were null and void. Count II alleged that the decedent lacked testamentary capacity and sought revocation of a restated trust executed in 2004 and reinsti-tution of the 1999 trust. Count III alleged fraud, duress and undue influence and sought revocation of administration of the amended and restated trust and its amendments. Count V alleged exploitation of a vulnerable adult and sought damages. Ci-tiGroup was served with a copy of the amended complaint.

Each defendant filed a motion to dismiss, arguing multiple grounds for dismissal, including that the Pasquales failed to timely contest the will because neither the complaint, nor the amended complaint, could be considered a will contest. Dismissal as to count V was sought based on the Pasquales lack of standing. The trial court granted the motions to dismiss counts I — III, reasoning that the complaint focused on the trust and did not even name the 2005 will. A trial court’s order of dismissal is reviewed de novo. See Horton v. Freeman, 917 So.2d 1064, 1066 (Fla. 4th DCA 2006).

We note, first, that the Pasquales could not challenge the validity of the trust without also contesting the will. The trust was incorporated by reference into the 2005 will. See Lewis v. SunTrust Bank, Miami, N.A., 698 So.2d 1276, 1277 (Fla. 3d DCA 1997) (“A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit identification.”) (quoting section 732.512(1), Florida Statutes (1995)). The 2005 will states:

I give all the residue of my estate, including my homestead, to the Trustee then serving under my revocable Trust Agreement dated October 26, 1999, as amended or hereafter amended (the “Existing Trust”), as Trustee without bond, but I do not exercise any powers of appointment held by me except as provided in the later paragraph titled “Death Costs.” The residue shall be added to and become a part of the Existing Trust, and shall be held under the provisions of said Agreement in effect at my death, or if this is not permitted by applicable law or the Existing Trust is not then in existence, under the provisions of said Agreement as existing today. If necessary to give effect to this gift, but not otherwise, said Agreement as existing today is incorporated herein by reference.

Because the trust was incorporated into the will, the Pasquales could not properly challenge the validity of the trust while adequate remedies were available at probate. See DeWitt v. Duce, 408 So.2d 216, 218 (Fla.1981) (“[I]f adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued.”); cf. Martin v. Martin, 687 So.2d 903, 906 (Fla. 4th DCA 1997) (appellants who sought to challenge trust on grounds of tortious interference were left with no adequate remedy at probate where pour-over provision in will was insufficient to incorporate trust; will and trust documents were executed two years apart; and any finding that decedent was susceptible to undue influence on one date would not be conclusive as to other). Rather, the will and trust must be read together. See In re Estate of Baer, 446 So.2d 1128, 1129 (Fla. 4th DCA 1984) (holding that “terms of the trust were incorporated in the will by reference as an integral part of the will; and that, in the absence of evidence that the testator clearly manifested a contrary intention, they continued to set forth the testator’s distribution plan even though the former had lost its independent legal significance”).

While the complaint at issue is not a model of clarity, we find that it adequately constituted a will contest. “A petition for revocation of probate shall state the interest of the petitioner in the estate and the facts constituting the grounds on which revocation is demanded.” Fla. Prob. R. 5.270(a). “All technical forms of pleadings are abolished” and “[n]o defect of forms impairs substantial rights.” Fla. Prob. R. 5.020(a). Though the complaint does not specifically identify the 2005 will, count I challenges the validity of all testamentary documents executed after 2000; count II alleges that the decedent “lacked the testamentary capacity to validly amend her estate planning documents”; and count III alleges undue influence and requests that attorneys’ fees be paid from “the estate.” Additionally, the complaint was filed in response to the notice of administration of the 2005 will, wherein the decedent completely revoked the Pasquales’ interest in the trust. Compare Feather v. Sanko’s Estate, 390 So.2d 746, 747 (Fla. 5th DCA 1980) (interpreting older version of probate code, finding that pleading filed by decedent’s disinherited child, entitled “Notice of Appearance,” was sufficient to contest will where pleading stated that she had interest in estate, and the will at issue disinherited her, making it clear that she opposed it). The alternate grounds raised by the appellees in their motions to dismiss do not support dismissal with prejudice.

Lastly, count V was correctly dismissed because appellants lacked standing. See § 415.1111, Fla. Stat. (2009) (stating that an action for a vulnerable adult who has been exploited “may be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim”).

Accordingly, we reverse the dismissal as to counts I, II and III. In reversing and remanding this cause for further proceedings, we, of course, express no opinion as to the merits of appellants’ petition for revocation of probate.

Reversed, in part, and remanded.

STEVENSON, HAZOURI and LEVINE, JJ., concur.

      . The fourth count is, apparently inadvertently, identified as “count V” in the complaint.


text:
    Robert L. ROWLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0633.
    District Court of Appeal of Florida, First District.
    March 21, 2012.

      Robert L. Rowland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(5)(A).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    David S. NAILON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3964.
    District Court of Appeal of Florida, First District.
    March 22, 2012.
    David S. Nailon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

David S. Nailon seeks certiorari review of an order dismissing as untimely his motion for reduction and modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). As the state properly concedes, petitioner’s motion was in fact timely. Accordingly, the petition for writ of certiorari is GRANTED, the order dismissing petitioner’s rule 3.800(c) motion is QUASHED, and the matter is REMANDED with directions to consider the merits of Nailon’s motion.

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    MOMBASA a/k/a Mombasa Douglas, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5723.
    District Court of Appeal of Florida, First District.
    March 22, 2012.
    Mombasa Douglas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent. .
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on April 27, 2011, in Duval County Circuit Court case number 16-2010-CF-007410-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him for purposes of the belated appeal authorized by this opinion.

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Troy D. PIPKIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5771.
    District Court of Appeal of Florida, First District.
    March 22, 2012.
    Troy D. Pipkin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying motions for post-conviction relief rendered on or about June 30, 2011, in Columbia County Circuit Court case number 1999-974-CF, is granted. Upon issuance of mandate, a copy of the opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

PADOVANO, LEWIS, and WETHERELL, JJ., concur:


text:
    Willie J. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6591.
    District Court of Appeal of Florida, First District.
    March 22, 2012.
    Willie J. Brooks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of the special master’s report and recommendation, the petition seeking a belated appeal of the order rendered June 21, 2011, denying petitioner’s motion for postconviction relief in Columbia County Circuit Court case number 2007-415-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


author: RAY, J.

text:
    Paul D. SRYGLEY and Shelley Z. Srygley, Appellants, v. CAPITAL PLAZA, INC., a Florida Corporation, Appellee.
    No. 1D11-2130.
    District Court of Appeal of Florida, First District.
    March 22, 2012.
    John G. Blade, Tallahassee, for Appellants.
    Mary W. Colón of Smith, Thompson, Shaw, Minacci, & Colón, P.A., Tallahassee, for Appellee.
   RAY, J.

Paul D. and Shelley Z. Srygley, Appellants, appeal the final summary judgment entered against them in a quiet-title action involving a condominium unit in Bay County, Florida. Capital Plaza, Inc., Appellee, initiated the action, claiming that it is the rightful owner of the unit pursuant to a tax deed it obtained through the tax deed sale process set forth in sections 197.512, 197.522, and 197.542, Florida Statutes (2009). Because the tax deed sale was conducted in accord with the statutory requirements, we affirm.

The material facts are not in dispute. Before Appellee recorded its tax deed, Appellants were the titleholders to the property at issue. Because Appellants failed to pay the ad valorem taxes for 2006, Bay County issued a tax certificate. Following an application for a tax deed, the clerk of the court provided Appellants notice of the application and the date of the property sale, through certified U.S. mail. In addition, the clerk advertised the upcoming sale once a week for four consecutive weeks in an area newspaper of general circulation. The highest bidder at the first sale failed to meet the statutory payment obligations, so the clerk canceled the sale.

After canceling the first sale, the clerk made one advertisement in the same newspaper for the date of the second sale, but did not send Appellants any individualized notice. At the second sale, Appellee entered the highest bid and satisfied the statutorily mandated payment requirements. Subsequently, Bay County conveyed the property to Appellee by tax deed.

Thereafter, Appellee instituted the instant action against Appellants and certain lienholders, asserting that any rights the defendants may have had in the property were extinguished by the tax deed. Appellants filed an answer, but did not assert the affirmative defenses that they paid the taxes or did not receive adequate notice of the application for tax deed and date of the first sale. Appellee moved for final summary judgment, arguing that the undisputed facts showed that the clerk properly granted it the property after having notified Appellants of the tax deed application and the date of the tax deed sale. The court agreed, granted Appellee’s motion, and entered final summary judgment quieting title in Appellee.

On appeal, Appellants argue that the trial court misconstrued the statute governing notice of a second tax deed sale. They claim that, as the titleholders, they were entitled to individualized notice of the second sale. In the alternative, Appellants argue that if the trial court’s construction is correct, the statute violates their right to due process. The resolution of these issues depends on our construction of the relevant statutes and' a consideration of the effect of those statutes on a property owner’s right to due process. As a result, the de novo standard of review applies. McNealy v. Verizon Support Ctr./Sedgwick Claims Mgmt. Servs., 79 So.3d 192 (Fla. 1st DCA 2012) (setting forth the standard of review governing statutory construction); R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1071 (Fla. 1st DCA 2010) (noting that the consideration of whether the right to due process has been violated is to be conducted de novo).

Established rules of statutory construction demand that when interpreting a statute, courts should give terms their plain meaning. Carmack v. State, Dep’t. of Agric., 31 So.3d 798, 800 (Fla. 1st DCA 2009). When the plain meaning of a statute is clear, a court should look no further than the language of the statute. Wolf v. Progressive Am. Ins. Co., 34 So.3d 81, 81 (Fla. 1st DCA 2010). Accordingly, we begin our analysis with a review of the pertinent statutes.

Pursuant to section 197.522(l)(a), Florida Statutes (2009), the tax deed sale process begins with notification by certified or registered mail to certain persons identified in section 197.502(4), Florida Statutes (2009), including any legal titleholder of record. This notification must advise the recipient that an application for a tax deed has been made, and it must be mailed at least twenty days before the date of the sale. § 197.522(l)(a). Additionally, section 197.512(1), Florida Statutes (2009), mandates that after a tax certificate has been acquired and all fees connected therewith are paid, “the clerk shall publish a notice once each week for 4 consecutive weeks at weekly intervals in a newspaper selected as provided in s. 197.402.”

Section 197.542(2), Florida Statutes (2009), requires that at the time of the sale, the high bidder pay five percent of the bid or $200.00, whichever is greater. The statute further requires that the high bidder tender full payment of the balance of the bid, plus taxes and costs, within twenty-four hours of the sale. § 197.542(2). The high bidder’s failure to comply with these obligations requires the clerk to cancel the sale and readvertise a new tax deed sale of the property. Id. Section 197.542(3), Florida Statutes (2009), describes the procedure and notice require-merits for all necessary resales due to cancellation of the first sale. It provides in pertinent part as follows:

[T]he clerk shall immediately readver-tise the sale to be held within BO days after the date the sale was canceled. Only one advertisement is necessary. No further notice is required ... The clerk must receive full payment before the issuance of the tax deed.

§ 197.542(3) Fla. Stat. (2009).

Appellants do not assert any deficiency in the notice they received about the initial tax deed application and date of sale. Their only complaint is that they were not given similar notice of the second tax deed sale. However, Appellants cite no statutory language or case law suggesting that section 197.522(l)(a) has any application to notification of any tax deed sales following a cancellation of the first one. The fact that the Legislature enacted a separate section prescribing the clerk’s notification duties for all subsequent tax deed sales belies Appellants’ claim that section 197.522(l)(a) applies. See § 197.542(2) Fla. Stat. (2009) (requiring the clerk to “readvertise the sale as provided in this section,” rather than section 197.522). In section 197.542(3), the Legislature uses clear and unequivocal language in setting forth the requirements for a second sale; namely, the clerk must read-vertise the sale once, the new sale must take place within 30 days of the canceled sale, and no other notice is necessary. The Legislature’s precise description of the initial notice requirements in section 197.522(l)(a) indicates that it knew how to put in specific language as to re-notification in the event an initial sale is canceled and a second sale necessitated. Cf. K.J.F. v. State, 44 So.3d 1204, 1210 (Fla. 1st DCA 2010) (comparing statutes to illustrate that the inclusion of a certain requirement in one circumstance and the omission of it in another indicates that the Legislature intended not to impose the requirement where it did not expressly so state). That the Legislature did not include any language to the effect that titleholders must be re-notified through certified mail of any subsequent tax deed sales suggests that it did not believe such notice was necessary.

In urging us to reject the trial court’s interpretation of section 197.542(3) as vio-lative of the right to due process, Appellants point us to Miller v. Knapp, 823 So.2d 203 (Fla. 4th DCA 2002). There, the clerk of the court sold a landowner’s property to satisfy delinquent taxes. Miller, 823 So.2d at 204. The clerk canceled the initial sale when the high bidder failed to make payment, triggering the readvertisement provisions of section 197.542(3). Id. The landowner sued to invalidate the tax deed sale under the theory that because he was not given notice of the second sale, he was deprived of his property without due process. Id. The court denied his claim, holding that when a landowner is notified of a pending tax deed sale of his property, “secondary notices are not mandatory for due process concerns.” Id. After reaching this conclusion, the Miller court emphasized that “the owner failed to attend the [first] sale and bid on the property” and speculated that “[h]ad he done so, undoubtedly the Clerk would have included the owner in the follow-up sale.” See id. This language indicates that the Miller court intended to leave open the question of whether the lack of a second notice after the cancelation of a tax deed sale would constitute a due process violation.

Mindful of our duty to construe a statute as constitutional whenever possible, see Dawson v. Saada, 608 So.2d 806, 809 (Fla.1992), we reject the argument that a second individualized notification to property owners is constitutionally required. As a general rule, the Legislature has the authority to “determine by what process and procedure legal rights may be asserted and determined provided that the procedure adopted affords reasonable notice and a fair opportunity to be heard before rights are decided.” Peoples Bank of Indian River County v. State, Dep’t of Banking & Fin., 395 So.2d 521, 524 (Fla.1981). In a case concerning whether a landowner received sufficient notice of a pending tax deed sale to comport with his right to due process, the Florida Supreme Court held that due process includes only such notice as is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Dawson, 608 So.2d at 808 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The court went on to explain, “Subject to this limitation, the [Ljegislature has the authority to determine the extent and character of the notice which shall be given by the state before property is sold for nonpayment of taxes.” Id.

Appellants are correct in highlighting that Florida has a clear policy of protecting individual property rights, and that a derogation of those rights may occur only after the individual has been notified of any pending action that would affect those rights. However, this standard is satisfied by the provision of individualized notice to the titleholders before the first sale. Appellants, like the landowner in Miller, received proper notice of the initial tax deed application and sale date. There is no evidence in the record that Appellants did or did not attend the initial sale. Regardless, after receiving the initial notice, they were aware that movements were afoot that would affect their property rights. If they neglected to solicit information from the clerk as to the disposition of their property, they did so at their own peril. Considering that Appellants knew, through receipt of certified mail notice from the clerk, that their property was subject to a tax deed sale for failure to pay taxes, and that they neither placed the winning bid at the first sale nor redeemed the property by paying the taxes they owed, they were not taken unaware when the property was sold to Appellee at the second sale.

As we read the relevant statutes, it is clear that the Legislature did not intend that a government official be solely responsible for protecting a citizen’s property rights; instead, the Legislature must have intended for the affected citizen to take action to protect his or her interests after the initial notification because the statute, by its plain language, requires only one individualized notification to the titleholders before property may be sold for delinquent taxes. The Legislature’s definition of requisite notice in the tax deed sale scenario is entirely within the due process boundaries set by both Florida and federal courts. In the case at bar, the clerk of the court met all notice requirements for the first and second tax deed sales, and Appellee satisfied its payment obligations to acquire the tax deed to the property in question. In consideration of the applicable statutes and foregoing facts, we affirm the trial court’s entry of final summary judgment quieting title in Capital Plaza, Inc.

AFFIRMED.

BENTON, C.J., and WETHERELL, J„ concur.

      . Any interest the lienholders may have had in the property is not at issue in this appeal.


text:
    Christina HAMILTON, Appellant, v. David T. LEMON, Appellee.
    No. 5D11-1390.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    Christina Hamilton, Crystal River, pro se.
    No Appearance for Appellee.
   COHEN, J.

Christina Hamilton appeals a final judgment of paternity. The record is sparse; no transcript was provided. In her “brief,” Ms. Hamilton appears to complain about the trial court’s decision to allow the natural father visitation with the parties’ child, although it is possible Ms. Hamilton also disputes the determination of paternity. The record reflects a DNA test, which Ms. Hamilton refers to as a “Walgreens [sic] bought paternity test.” There is no answer to the original petition and, other than the previously quoted comment, no clear indication in her brief that paternity is still in dispute. Ms. Hamilton certainly disputes the decision of the trial court allowing the natural father visitation. However, issues relating to shared parenting and visitation are naturally fact-intensive and, without the benefit of a transcript, are not subject to appellate review absent some defect on the face of the final judgment. Van Epps v. Hartzell, 934 So.2d 590, 592 (Fla. 5th DCA 2006).

AFFIRMED.

ORFINGER, C.J., and MONACO, J., concur.


author: MORRIS, Judge.

text:
    Stacy Lee WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2202.
    District Court of Appeal of Florida, Second District.
    March 23, 2012.
   MORRIS, Judge.

Stacy Lee Watts appeals the order summarily denying his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of Watts’s original 3.850 motion. We also affirm the denial of claims one and three of Watts’s amended 3.850 motion. However, we reverse and remand on claim two of Watts’s amended 3.850 motion because the post-conviction court failed to address it.

Watts was originally convicted of carjacking, aggravated fleeing to elude, driving with a suspended license, and possession of paraphernalia. He was sentenced as a habitual offender to life in prison for carjacking, a concurrent thirty years in prison for aggravated fleeing to elude, one year in county jail for driving with a suspended license, and time served for possession of paraphernalia.

In claim two of Watts’s amended 3.850 motion, he alleged that trial counsel was ineffective for failing to investigate Watts’s mental health and for failing to seek a competency determination. Such a claim is cognizable in a rule 3.850 motion, see Demarco v. State, 31 So.3d 975, 976 (Fla. 2d DCA 2010) (“[T]he narrow argument that counsel was ineffective for failing to raise a defendant’s competency is cognizable in a rule 3.850 motion.”), and we conclude that the claim was not conclusively refuted by the record excerpts attached to the postconviction court’s order, see Houle v. State, 74 So.3d 143, 144 (Fla. 1st DCA 2011). Consequently, we remand to the postconviction court to either attach the portions of the record that conclusively refute claim two of Watts’s amended 3.850 motion or to hold an evidentiary hearing on that claim. See Coley v. State, 74 So.3d 184, 185 (Fla. 2d DCA 2011); Cochran v. State, 46 So.3d 1116, 1118 (Fla. 2d DCA 2010).

Affirmed in part, reversed in part, and remanded.

CASANUEVA and LaROSE, JJ., Concur.

      . These two claims alleged that the trial court erred by failing to have Watts examined by at least three mental health experts and by failing to hold a competency hearing. Because these claims consist of allegations of trial court error, they are procedurally barred. See Whitfield v. State, 923 So.2d 375, 378-79 (Fla.2005) (holding that a claim that appellant’s rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), were violated by failing to obtain an adequate mental health examination was a claim that should have been raised on direct appeal).