author: WARNER, J.

text:
    Roberta Beth NIEDERMAN, n/k/a Roberta Beth Kleinman, Appellant, v. Alan Louis NIEDERMAN, Appellee.
    Nos. 4D08-1731, 4D08-4147.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Rehearing Denied May 31, 2011.

      Nancy W. Gregoire and Joel L. Kirschb-aum of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for appellant.
    Carin M. Porras and Gordon C. Brydger of Brydger & Porras, LLP, Fort Lauder-dale, for appellee.
   WARNER, J.

In determining the issue of alimony in this dissolution of marriage proceeding, the trial court imputed income to the former wife from annuities and Individual Retirement Accounts (IRAs) which were distributed to her as equitable distribution, concluding that IRS provisions permitted her to withdraw monies from IRAs without penalty through a Regulation 72(t) withdrawal plan. The wife contends that this was error. We disagree, holding that the trial court did not abuse its discretion in considering the IRAs to be available sources of income to the wife. Both parties raise several other issues in her appeal and his cross-appeal. We affirm as to all issues raised and write to address the imputation of income from the IRA and annuity accounts.

The husband and wife filed for divorce after nineteen years of marriage. At the time of final judgment the wife was 53 and the husband was 54. It is undisputed that the husband is a cardiac interventionist with a yearly income before taxes in the neighborhood of half a million dollars. The wife had not worked full time since 1987, though she has recently worked part time as a diabetes educator earning $35,000 per year. The marital estate was approximately $7.1 million. They had lived a “moderately lavish” lifestyle, but within their means. The court awarded each party approximately 3.5 million dollars in assets as equitable distribution.

The court awarded the former husband $3,498,946, which included the marital home, his medical practice and various business interests. It awarded the former wife $3,605,826. Of that amount, $2,759,744 constituted IRAs and annuities. She received $729,334 in non-retirement assets including CDs and securities. She also maintained $313,000 of non-marital assets.

The court found the wife was entitled to permanent periodic alimony. It determined that her net monthly income from her part-time employment was $2,500 and that she should not be required to work full time. The court found her net monthly need to be $15,000. That left her with a shortfall of $12,500 monthly. The court determined that she was entitled to $5,000 in alimony, based upon the court’s conclusion that her annuities and IRAs could earn $9,000 monthly and could be withdrawn for her support without penalty. In addition, the court made the husband responsible for the transaction fees and costs incurred by the wife for withdrawals up to $7,500 per month.

The court based its findings on the use of the IRA for support of the wife on the testimony of the husband’s accountant. Under existing law, if funds are removed from an IRA or annuity before the participant is 59 1/2 years old, there is a 10% extra penalty tax. However, IRC s. 72(t) provides taxpayers a way to withdraw monies without penalty from annuities or IRAs by allowing substantially equal payments over a period of time of at least five years based on the life expectancy of the participant and a reasonable rate of return. The accountant testified that the wife (who at that time was 58) could withdraw these equal payments for 6 1/2 years until she reaches age 59 1/2, when she could access all of the funds without penalty. Based on the wife’s 31-year life expectancy and a reasonable interest rate of 5% applied to the principal in the fund, the wife could withdraw up to $14,500 per month from the IRAs and annuities. Because the IRAs and annuities had historical earnings from 6% to 9%, the principal would continue to grow at some amount even with the withdrawals figured at a 5% return.

In imputing an amount that the wife could draw on the IRA and annuity accounts as a source of support for the wife, the court accepted the husband’s argument that requiring the wife to use the IRAs and annuities for support was authorized by this court’s opinion in Donoff v. Donoff, 940 So.2d 1221 (Fla. 4th DCA 2006), as well as the Florida Supreme Court’s opinion in Mallard v. Mallard, 771 So.2d 1138 (Fla.2000). Failure to include the income from the annuities as support for the wife, and instead requiring the husband to pay additional alimony, would constitute an impermissible “savings component” in the alimony.

The wife challenges the trial court’s inclusion of IRA income in its determination of her ability to support herself. She contends that the court erred as a matter of law in concluding that income from her IRAs and annuities could be imputed to her. We hold, however, that income from an IRA through a Regulation 72(t) withdrawal plan can be imputed to a spouse for purposes of determining an alimony obligation where the court can reasonably conclude that the principal of the IRA will not be invaded for the purpose of support.

Section 61.08(2), Florida Statutes (2007), establishes the criteria to be considered by a court for an award of alimony to a spouse.

(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

Chapter 61 also contains a definition of “income” in section 61.046(8), Florida Statutes (2007):

(8) “Income” means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other pay-merits, made by any person, private entity, federal or state government, or any unit of local government.

Taking these provisions together, a court must consider the financial resources distributed to the parties through the dissolution and all sources of income available, which includes payments available from annuities and retirement benefits. In this case that includes the income available from the IRAs and annuities.

The wife contends, however, that the income from the investments is not “available” to her prior to her attaining 59 1/2 years of age, when it can be withdrawn without penalty. She contends that it should constitute “available” income only when it is actually in a “pay” status. And she argues that because it can be reached only by requiring her to set up a section 72(t) payment plan, it is not available income.

We disagree that the court cannot look to the substantial IRA and annuity accounts it distributed to the wife as equitable distribution as a source of income for the purposes of determining alimony. First, the statute requires the court to look at the financial resources distributed to the party. § 61.08(2)(d), Fla. Stat. Second, “available” means “obtainable” or “accessible.” Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/ dictionary/available (last accessed April 6, 2011). The payments from the IRA and annuity accounts are readily accessible through the 72(t) payment plan.

“A court should impute income that could reasonably be projected on a former spouse’s liquid assets.” Rosecan v. Springer, 985 So.2d 607, 609 (Fla. 4th DCA 2008) (citing Greenberg v. Greenberg, 793 So.2d 52, 55 (Fla. 4th DCA 2001)). In Rosecan, we held that, for purposes of determining alimony, the trial court erred in refusing to impute a reasonable rate of return on stock investments distributed to the wife. The basis for the trial court’s ruling was that the parties had invested in growth stocks with limited current income potential. We rejected the limitation on income on this basis, concluding that this would essentially inject a “savings component” into alimony, condemned by Mallard. We said:

Our supreme court has determined that “[i]n awarding alimony, the court may not factor in speculative post-dissolution savings based upon a marital history of frugality.” Mallard v. Mallard, [citation omitted]. Put another way, “alimony may not include a savings component.” [citation omitted]. In Donoff v. Donoff, [citation omitted], this court cited Mallard and stated that trial courts may not “increase the amount of alimony by adding an investment (i.e., growth) allowance.... ”

Rosecan, 985 So.2d at 609-10. We quoted with approval language from Overbay v. Overbay, 376 N.J.Super. 99, 869 A.2d 435, 441 (2005), which expressed the Florida position with respect to investment assets:

when a spouse with underearning investments has the ability to generate additional earnings—without risk of loss of depletion of principal—but fails to do so, it is fair for a court to impute a more reasonable rate of return to the under earning assets, comparable to a prudent use of investment capital.

Overbay, 869 A.2d at 443.

Likewise, in Donoff, we held that the court erred in failing to consider income from an IRA account as available to the former wife for the purposes of her support, even though it was available without penalty. We remanded with a strong suggestion that, given her resources available, it would be difficult for her to establish her need for alimony. The former wife attempts to distinguish Donoff by suggesting that it merely directed the trial court to' “consider” the IRA income without making imputation of income from the annuities mandatory. But section 61.08, Florida Statutes, requires that the court “consider” all of the foregoing factors. The court would abuse its discretion not to take into account evidence presented that shows that a spouse has a substantial source of income available but refiises to access it. On the other hand, if the amount were small compared to the expense and difficulty of setting up a payment plan, or payments would encroach on principal, or other equitable factors would permit the court to exclude the income, then the trial court could disregard such evidence. Those decisions come within the discretion of the trial court. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980).

Were the court to disregard the income producing potential of the assets awarded to the wife, the husband would be required to pay more alimony to the wife, so that the wife’s IRA accounts would continue to grow in principal. In essence, the alimony payment would allow the wife to increase her savings. Mallard holds that “alimony may not include a savings component.” Here, if the wife is not required to use the available income, which does not reduce principal, the alimony would include a savings component.

The wife contends that Castaldi v. Castaldi, 968 So.2d 713 (Fla. 2d DCA 2007), rejects the consideration of IRA income for purposes of determining alimony. In Castaldi, the trial court distributed1 equally the husband’s retirement accounts, although the opinion does not state what types of accounts these were. At the time the parties were both still working and had not drawn on the accounts. The trial court did not attribute any income to the wife from her share of the retirement accounts. On appeal, the Second District affirmed, relying on Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986), in which the supreme court held that in a divorce vested pension benefits could be treated as marital assets or a source of income but not both. However, the benefits considered in Diffenderfer were employer paid benefits, not the IRAs and annuities involved in this case. If Castaldi involved pension benefits of the Diffenderfer type, it would be inapplicable to this fact situation. If Castaldi involved IRA accounts or annuities, then we would disagree and certify conflict with its holding that the court could not consider the amount of income available to the wife from the asset she acquired in equitable distribution.

Kitchens v. Kitchens, 4 So.3d 1 (Fla. 4th DCA 2009), relied on by the wife, is also distinguishable. There, we held that the trial court erred in treating discretionary withdrawals of IRA principal after retirement as income for the purposes of child support. In contrast, in this case the trial court’s imputation of income from the IRAs and annuities did not invade principal but imputed income to that principal.

Finally, the wife argues that imputing income to the wife from an early withdrawal of payments from an IRA is contrary to public policy. We disagree. IRAs constitute a tax-advantaged retirement savings plan, but it is exactly that — a savings plan. Other methods of savings and investment are also intended to assist persons in retirement and should not be treated any differently than an IRA when divorce occurs. As in Rosecan, if the parties had their assets in growth producing stocks with little income potential, or if their stocks were enrolled in dividend reinvestment programs which produced no “available” income to them, nothing should shield those assets from being considered as capable of producing income. In fact, the Legislature amended section 61.08 last year to state specifically that the trial court shall consider “All sources of income available to either party, including income available to either party through investments of any asset held by that party.” The legislative policy with respect to alimony is clear. The trial court should consider the income available from investments of any assets held by that party.

The trial court did not abuse its discretion in both considering and imputing income from a 72(t) plan of payments from the IRAs and annuities to the wife, reducing the husband’s alimony obligation. We stress that by using a 5% rate of return when the IRAs had historically earned more than that shows that the court did not invade principal. Thus, the wife retains the assets awarded to her in the dissolution, just the same as if she were awarded stocks and bonds not in an IRA.

In this case, the assets approached 2.7 million dollars, which would yield a sizea-ble amount of income. There may be cases where the use of a 72(t) payment plan may yield so little in income as to make it impractical to use as a source of income. Moreover, the expert calculations to determine the amount and the payment plans may prove more costly than the amount of income available. Therefore, as we noted before, after consideration of the evidence presented, the court could decline to impute income from retirement accounts for equitable considerations to do justice in the case.

We would further note that our decision can work both ways. In a proper case, the court could consider income available to the paying spouse when determining an ability to pay alimony. In a case where a spouse may be claiming a reduction in earned income but with substantial IRA or other retirement plans, a court could impute income to a paying spouse pursuant to a 72(t) plan in order to assure that a spouse’s alimony needs are met.

The wife further argues that there was no competent evidence that her IRA and annuities would grow at a 5% rate. She claims that the trial court relied on impermissible speculation to impute an amount of income to the wife from her assets. Any decision to impute income must be supported by competent substantial evidence. See Brown v. Cannady-Brown, 954 So.2d 1206 (Fla. 4th DCA 2007). In this case, both experts testified that 5% was a reasonable rate of return for investments. Further, the husband’s forensic accountant testified that historically, the IRAs had achieved a 9% return on investment. Thus, attributing a 5% return was very conservative. Nevertheless, the wife argues that the significant downturn in the economy and reduction of rates of return shows that the court’s imputation of a 5% return is speculative and that now the wife is faced with a diminution of principal.

Hindsight is always 20/20. A trial court, however, must rule based upon the evidence presented. On appeal, the court is limited to the record before the trial court as to whether the court erred. The court rendered its final judgment in January 2008, before the collapse of the economy. The post-dissolution changes in the parties’ positions does not render the final judgment erroneous. Post-dissolution changes may be properly addressed, where appropriate, in modification proceedings.

As it is, we conclude that the expert evidence established that the IRA funds historically earned more than the rate of return used by the trial court. Further, both expert accountants agreed that 5% was a reasonable rate of return. The court had competent substantial evidence to support its decision.

For the foregoing reasons, we conclude that the trial court’s imputation of income from the IRA and annuity accounts was proper. We affirm on this issue and all other issues raised in the appeal and cross-appeal.

POLEN and STEVENSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Peter M. ROBBINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3156.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Carey Haughwout, Public Defender, Paul E. Petillo, Assistant Public Defender, West Palm Beach, and Peter M. Robbins, Bristol, for appellant.
    No brief filed for appellee.
   PER CURIAM.

We affirm the trial court’s adjudication and sentence for appellant’s violation of probation. We remand, however, for the trial court to correct a scrivener’s error: appellant was found guilty of only one count of violation of probation, not three.

Affirmed; Remanded with Instructions.

WARNER, POLEN and CONNER, JJ., concur.


author: MARSTILLER, J.

text:
    Darryl Keith WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2315.
    District Court of Appeal of Florida, First District.
    May 4, 2011.

      Shelley L. Thibodeau and J. Craig Williams, Jacksonville, for Appellant.
    Pamela Jo Bondi, Assistant Attorney General, and Anne C. Conley and Therese A. Savona, Assistant Attorneys General, Tallahassee, for Appellee.
   MARSTILLER, J.

Appellant asserts two errors by the trial court in revoking his probation and sentencing him to 15 years in prison: the court entered a written judgment that does not conform to the court’s oral pronouncement; and the court fundamentally erred by finding him in violation of probation based on conduct not alléged in the probation officer’s affidavit. We agree and reverse.

In October 2005, Appellant pled guilty to, and was convicted of, lewd battery involving a person 12 or older but younger than 16. The trial court sentenced Appellant, 20 years old at the time of the offense, to 42 months in prison followed by three years’ sex offender probation. The 27 conditions of probation included special condition 12, which provided: “Until completion of the Sexual Offender Program, you will have no unsupervised contact with any child under the age of 18 years without another adult present who is responsible for the child’s welfare, who has been advised of the crime(s) of this case.”

Appellant began his probationary sentence in October 2008. In December 2009, his probation officer filed an affidavit alleging Appellant had violated conditions 8 and 9 and special conditions 12 and 18 of the order of sex offender probation. As to condition 12, the affidavit states:

[0]n or about 11/25/09 the offender had contact with a 1 year old child, according to information obtained from a witness, who resides directly across the street from the offender. The witness stated he noticed Mr. Wells washing a tan SUV in his front yard. Standing next to him was a woman holding a baby (approximately 1 year old). Later Mr. Wells came out of the house holding the child. The witness stated the woman that was with the child was a heavy set black female. The offender’s girlfriend, Crystal Gayle is a smaller black female, approximately 120 pounds. The sworn statement indicates that Mr. Wells was having contact with a child other than his girlfriend’s children.

At the violation of probation hearing, testifying witnesses included Petei Rastel-lini, the eyewitness whose sworn statement supports the probation officer’s affidavit, and Darleasha Wells, Appellant’s sister and the mother of the one-year-old Appellant was seen holding. Mr. Rastellini’s testimony substantiated the allegations in the affidavit. Notably, however, he did not specifically testify that he saw Appellant alone with the baby. Ms. Wells testified it was her SUV that Appellant was seen washing in his yard, that the one-year-old is her child, that the child was in her presence the whole time, and that she knew of her brother’s sexual offender status and probation conditions at the time.

Appellant testified on his own behalf. Neither the prosecutor nor defense counsel questioned him specifically about the incident Mr. Rastellini reported. Instead, they inquired about his contact with his girlfriend’s three young children. Appellant testified he has had occasional brief unsupervised contact with the children when their mother went to the store. But on some of those occasions, his girlfriend’s sister was present in the girlfriend’s home. And both women knew of his prior sexual offense and probation conditions, although not that his victim was 12 years old.

The trial court orally pronounced Appellant in violation of special condition 12, finding he had unsupervised contact with his girlfriend’s children. The court found no violations of conditions 8, 9 or 18. The written revocation order, however, “finds the Defendant in violation of conditions 8, 9,12, & 18.”

As the State properly concedes, the revocation order is incorrect insofar as it contradicts the trial court’s oral pronouncement as to conditions 8, 9 and 18. See Thompson v. State, 965 So.2d 1250, 1251 (Fla. 1st DCA 2007) (“When a conflict exists between an oral revocation pronouncement and the written order revoking probation, the oral pronouncement will control.”). The remaining violation — special condition 12 — cannot stand because “[a] trial court is not permitted to revoke probation on conduct not charged in the affidavit.” Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003), and cases cited therein. The court based its finding on evidence that Appellant had unsupervised contact with his girlfriend’s children. But the only allegation in the violation of probation affidavit is that Appellant was seen holding a baby. And the affidavit does not allege the contact was unsupervised. Cfi, Joslin v. State, 984 So.2d 1269, 1272 (Fla. 2d DCA 2008) (court could not revoke probation for failure to tell probation officer contact with children must be supervised when affidavit alleged neither that probationer must have supervised contact or that he failed to advise probation officer of that requirement). Appellant did not raise this issue below, but revoking an individual’s probation for conduct not alleged in the charging document deprives the individual of due process and constitutes fundamental error. See Ray v. State, 855 So.2d 1260, 1261 (Fla. 4th DCA 2003); Smith v. State, 738 So.2d 433, 435 (Fla. 1st DCA 1999); Richardson v. State, 694 So.2d 147, 147 (Fla. 1st DCA 1997).

The State’s other evidence fails to prove Appellant violated special condition 12 of his probation, which prohibits “unsupervised contact with any child under the age of 18 years without another adult present who is responsible for the child’s welfare, who has been advised of the crime(s) of this case.” (Emphasis added). See Lindsay v. State, 54 So.3d 638, 639 (Fla. 1st DCA 2011) (trial court has broad discretion to find violation of probation, but State must prove willful and substantial violation by preponderance of the evidence). Mr. Rastellini, who testified he saw Appellant in his yard holding a baby, did not say, even when the court attempted to clarify his testimony, that he saw Appellant alone with the baby. Even if Mr. Rastellini had so testified, the court could not find a probation violation because, as noted above, the affidavit did not allege Appellant had unsupervised contact with the child.

Accordingly, we reverse the order revoking Appellant’s probation and vacate the 15-year prison sentence.

LEWIS and HAWKES, JJ., concur.


text:
    Luis VILLANUEVA, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellees.
    No. 1D10-5380.
    District Court of Appeal of Florida, First District.
    May 4, 2011.
    Adam Deli of the Law Office of Adam Deli, LLC, Jacksonville, for Appellant.
    William David Newman, Jr., of the Law Offices of Marshall C. Watson, P.A., Fort Lauderdale, for Federal National Mortgage Association.
   PER CURIAM.

Appellant Luis Villanueva, defendant below, appeals final summary judgment entered for the plaintiff in an action to foreclose a mortgage. Appellant contends that there are disputed issues of material fact regarding the standing of the original plaintiff to bring suit. Appellee, having reviewed the record and the initial brief, agrees that entry of summary judgment was premature and confesses error. We accordingly reverse and remand to the trial court for further proceedings.

REVERSED.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    Jaworski Lee SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6318.
    District Court of Appeal of Florida, First District.
    May 4, 2011.
    Joel M. Cohen, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Jaworski Lee Simmons is hereby afforded belated appeal from judgment and sentence in case number 09-CF-001904 A in the Circuit Court for Escambia County. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    Abner SILVA, Appellant, v. BAC HOME LOANS SERVICING, L.P., etc., Appellee.
    No. 5D10-3511.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Matthew D. Valdes, Kaufman, Englett & Lynd, PLLC, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Abner Silva, the defendant below, seeks review of an order denying his motion to set aside a default final judgment entered against him. We reverse.

In this foreclosure case, substituted service of process was secured on Silva under section 48.031, Florida Statutes (2010), by serving a “Luz Rodriguez”, who purportedly lived at the mortgaged property. However, the affidavits and other information submitted in support of Silva’s motion below established that the mortgaged property had been vacant for some time prior to the purported service, that he did not know anyone by the name of Luz Rodriguez, and that his usual place of abode was, and had been for eighteen months prior to the purported service, in Miami.

The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Amco Constr., Inc., 867 So.2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was, therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So.2d 131 (Fla. 3d DCA 1994).

REVERSED.

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


text:
    Richard Allen BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1795.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Arbelaez v. State, 898 So.2d 25, 44 (Fla.2005) (holding admission of photos of murder victim is within trial court’s sound discretion and will not be disturbed on appeal absent clear showing of abuse).

PALMER, ORFINGER and COHEN, JJ., concur.


text:
    Michael SCHNEIDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See generally Jackson v. State, 979 So.2d 1158 (Fla. 5th DCA 2008) (explaining that evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances;, in addition, evidence may be authenticated either by using extrinsic evidence, or by showing that it meets requirements for self-authentication).

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


author: LAWSON, J.

text:
    Patricia L. PRALLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1475.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.

      James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Patricia L. Pralle appeals from the denial of her motion to withdraw plea after sentencing. Finding that the trial court abused its discretion in denying the motion, we reverse and remand with directions that the motion to withdraw plea be granted.

Pralle was charged with one count of grand theft for stealing a motor vehicle, another count of grand theft for stealing jewelry, and a count of petit theft for stealing less than $100 in cash. The victim in each count was Pralle’s paternal grandmother, who also served as Pralle’s legal guardian. Pralle’s criminal punishment scoresheet reflects no prior criminal record, and Pralle did not face a mandatory term of incarceration.

On February 22, 2010, Pralle entered a negotiated plea with an overall sentencing cap of seven years in state prison, with no reference to any probationary period that might extend the overall sentence beyond the seven-year cap. At sentencing, the defense requested that the court sentence Pralle to juvenile sanctions that would include psychological and drug treatment. The State agreed that Pralle “need[ed] dual diagnosis help,” adding that: “I think that is what’s in every one of the reports. She needs long-term inpatient help.” The State’s recommendation echoed comments from the victim that she only wanted Pralle to get the help that she needed and asked that Pralle be allowed to “come home.”

The trial judge, however, announced that he had decided to structure “something different than the seven-year-capped sentenced that I had — that I had offered,” and instead imposed a sentence of five years in state prison to be followed by five years of probation. Pralle moved to withdraw her plea when the overall sentence exceeded the cap promised to induce her plea, but the trial court denied the motion.

On appeal, the State appears to concede error based upon Echeverria, v. State, 949 So.2d 831 (Fla. 1st DCA 2007) (holding that a defendant must be permitted to withdraw his or her plea where the trial court accepts a plea and then imposes a sentence in excess of any negotiated sentence cap contained in the plea agreement). Acknowledging Echeverría as controlling, the State simply requests that we “rule as justice requires.”

Accordingly, we reverse and remand with directions that Pralle be permitted to withdraw her plea.

REVERSED and REMANDED WITH DIRECTIONS.

TORPY and COHEN, JJ., concur.

      .The record reflects that Pralle's mother abandoned her when Pralle was ''young,” and that Pralle was raised by her father, the victim’s son, until Pralle's father committed suicide approximately one year prior to the crimes at issue. Pralle either witnessed the suicide or "[came] in and [saw] her father having killed himself.” After the suicide, Pralle was entrusted solely into the care of her grandmother, the victim. Pralle was seventeen at the time she committed the offenses, and at the time of her plea. She had turned eighteen by the time of her sentencing. The State initially filed a delinquency petition against Pralle, but later transferred the case to adult court.

      . The jail psychologist who had been treating Pralle as she awaited her plea and sentencing testified that Pralle suffered from post-traumatic stress disorder and "major depression,” for which she was receiving treatment in jail. The psychologist stated that Pralle had been responding positively to the treatment, and needed continued treatment.

      . The State ultimately recommended imposition of a five-year prison sentence, to be suspended on condition that Pralle successfully complete a residential dual-diagnoses treatment program, followed by out-patient therapy-


text:
    Joshua M. BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3247.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Bell appeals from the judgment and sentence imposed by the trial court after it found that he had violated his probation. Although there was substantial competent evidence to support the trial court’s decision, we are compelled to remand because the trial court failed to enter a written order specifying the probation conditions violated. See Mormon v. State, 976 So.2d 1188 (Fla. 5th DCA 2008); Patt v. State, 876 So.2d 1278 (Fla. 5th DCA 2004); Brinson v. State, 866 So.2d 1268 (Fla. 5th DCA 2004).

We, therefore, vacate the judgment under review and remand for entry of a proper order specifying which conditions Bell was found to have violated.

Judgment VACATED; case REMANDED for entry of a proper adjudication order.

PALMER, EVANDER and COHEN, JJ., concur.

      . During the pendency of this appeal, the trial court entered a new order in an apparent attempt to remedy this error. However, the trial court lacked jurisdiction to enter said order. See State ex rel. Salomon v. Sandstrom, 349 So.2d 696 (Fla. 3d DCA 1977).


text:
    Ronnie CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3465.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Ronnie Cummings, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The Appellant, Ronnie Cummings, seeks review of an order summarily denying his motion for postconviction relief, which he filed pursuant to Florida Rule of Criminal Procedure 3.850. The State concedes error. Based on our review of the record, we conclude the trial court erred because the order does not set forth sufficient reasons for the summary denial, nor does it contain sufficient references to the portions of the record conclusively refuting the claims. See generally Patton v. State, 784 So.2d 380 (Fla.2000). The order summarily denying postconviction relief is therefore reversed. The cause is remanded for the trial court to either grant an evidentiary hearing or enter an order containing sufficient reasons and record attachments supporting a summary denial.

REVERSED and REMANDED with instructions.

SAWAYA, COHEN and JACOBUS, JJ., concur.


text:
    Anthony John SELVESTER, Appellant, v STATE of Florida, Appellee.
    No. 5D11-353.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Anthony John Selvester, Gainesville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the summary denial of his rule 3.800 motion seeking additional jail credit in two cases. The State concedes that Appellant is entitled to two additional days of jail credit in lower court case number 2006-CF-964, for a total of 101 days. There might also be a discrepancy between the order on Appellant’s rule 3.800 motion, which indicates that Appellant received 99 days’ credit, and the judgment and sentence reflecting 81 days’ credit. Either way, the court shall amend the judgment to award a total of 101 days’ credit in this case.

As for case number 2007-CF-1411, the order of the lower court is affirmed in all respects. Appellant has failed to demonstrate error regarding his request for coterminous sentences or additional jail credit in this case.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

PALMER, TORPY and EVANDER, JJ., concur.


text:
    Sergio G. CAMPOS-CARRIERA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-798.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Sergio G. Campos-Carriera, Lake City, 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 number 2006-CF-013546, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Jason TORRES, Appellee.
    No. 2D10-920.
    District Court of Appeal of Florida, Second District.
    May 6, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Judge.

The State appeals a downward departure prison sentence imposed on Jason Torres. See Fla. R. App. P. 9.140(c)(l)(N). It argues that the trial court’s reasoning is invalid or not supported by competent, substantial evidence. We agree, in part, and remand for further consideration.

Mr. Torres pleaded no contest to two counts of DUI manslaughter. See § 316.193(3)(c)(3)(a), Fla. Stat. (2008). Mr. Torres, the driver, and the two passengers, his friends, had been drinking together before the single-car crash.

Mr. Torres’ criminal punishment code scoresheet reflected a minimum prison sentence of 242.2 months (20.183 years). He argued at sentencing that section 921.0026(2)(f), Florida Statutes (2008), allowed for a downward departure where the victims were willing participants in the incident. Alternatively, he argued that section 921.0026(2)(j) applied because the offenses were isolated, committed in an unsophisticated manner, and because he was remorseful. The trial court rejected the latter ground but found that section 921.0026(2)(f) applied. Mr. Torres received concurrent ten-year prison terms with a four-year mandatory minimum followed by five years of probation.

In assessing whether to impose a downward departure sentence, the trial court must determine if it can depart based on a valid legal ground and adequate factual basis. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). We will sustain its conclusion if it applied the right rule of law and if competent, substantial evidence supports its ruling. Competent, substantial evidence is tantamount to legally sufficient evidence, which we assess for sufficiency only and not weight. Id.

The trial court also must determine if it should depart based on the totality of the circumstances, including aggravating and mitigating circumstances. We review this assessment for an abuse of discretion. Id. at 1068.

We are aware of no Florida case addressing the application of “willing participation by the victim” in the context of a DUI manslaughter offense. Most cases dealing with this mitigating factor involve sex offenses against minors. See State v. Rife, 789 So.2d 288, 296 (Fla.2001) (concluding that section 921.0016(4)(f), Florida Statutes (1997), does not prohibit as a matter of law the imposition of a downward departure sentence based on a finding that the victim was a willing participant in the incident); see also Knox v. State, 814 So.2d 1185, 1187 (Fla. 2d DCA 2002) (holding that sixteen-year-old victim’s consent could be considered as basis to impose downward departure sentence based on holding in Rife); Holland v. State, 953 So.2d 19, 21 (Fla. 2d DCA 2007) (holding child victim’s consent could be basis to impose downward departure sentence for nine counts of lewd or lascivious battery).

A trial court can mitigate a sentence based on conduct that is not sufficient to excuse the crime. Hines v. State, 817 So.2d 964, 965 (Fla. 2d DCA 2002) (reversing sentence for reconsideration in light of discretion under section ’ 921.0016(4)(f) to depart if facts so warranted in aggravated battery case where jury rejected defendant’s self-defense argument). We also recognize that, in the civil context, a passenger’s voluntary action of knowingly riding in an automobile with an intoxicated driver can implicate comparative negligence principles to reduce damage awards. See, e.g., Fla. E. Coast Ry. Co. v. Keilen, 183 So.2d 547, 549-50 (Fla. 3d DCA 1966); Gerena v. Carter, 496 So.2d 1009, 1009 (Fla. 2d DCA 1986); see also § 768.36(2), Fla. Stat. (2008) (stating that in a civil action a victim’s intoxication may preclude recovery if he or she was more than fifty percent at fault for his or her own harm).

On the facts before us, we decline any invitation to extend comparative negligence principles to the statutory sentence mitigator of “willing participation by the victim” in a criminal DUI manslaughter case. But see State v. Hinds, 85 Wash. App. 474, 936 P.2d 1135 (1997) (holding willing participant mitigating factor may be applicable in sentencing for vehicular homicide where victim provided alcohol to eighteen-year-old and allowed him to drive her automobile and causal connection is found between victim’s conduct and defendant’s recklessness).

We vacate the downward departure sentence imposed under section 921.0026(2)(f). However, the trial court legally erred when it found section 921.0026(2)(j) inapplicable. Its reliance on section 921.0026(3) and State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003), is misplaced.

Statutory mitigators allow a downward departure sentence in DUI cases when all required elements are shown. State v. VanBebber, 848 So.2d 1046, 1049 (Fla.2003) (holding that statutory mitigator that offense was committed in an unsophisticated manner, was isolated incident, and defendant was remorseful applied in DUI case and that section 921.0026(2)(j) applies to DUI offenses and section 921.0026(3) does not preclude its application); Kezal v. State, 42 So.3d 252, 256-57 (Fla. 2d DCA 2010) (remanding for resentencing for consideration of statutory mitigators of unsophisticated manner and lack of capacity to appreciate criminal nature of conduct in DUI manslaughter and DUI serious bodily injury case); see also State v. Sachs, 526 So.2d 48, 50 (Fla.1988) (stating that mitigating factors for downward departure can be based on matters such as actual remorse, lack of future threat to society, and isolated incident in DWI case, but factors taken into consideration by the guidelines cannot).

Accordingly, we affirm Mr. Torres’ judgments, vacate the sentences, and remand for the trial court to reconsider the sentences under section 921.0026(2)(j). See Kezal, 42 So.3d at 256-57.

Judgments affirmed, sentences vacated, and case remanded.

CASANUEVA, C.J., and BLACK, J., Concur.


author: KHOUZAM, Judge. VILLANTI, Judge.

text:
    Barron THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3918.
    District Court of Appeal of Florida, Second District.
    May 6, 2011.
    Barron Thompson, pro se.
   KHOUZAM, Judge.

We reverse the denial of Barron Thompson’s motion for postconviction relief that he filed pursuant to Florida Rule of Criminal Procedure 3.850 because it was neither untimely nor successive, as found by the postconviction court.

The two-year period for Thompson to file his rule 3.850 motion expired on May 15, 2010. Thompson certified that he placed his motion in the hands of prison officials on May 12, 2010; however, the motion was not stamped filed by the clerk of the circuit court until June 16, 2010. The postconviction court erred when it ruled the motion as untimely.

[A] legal document submitted by an inmate is timely filed if it contains a certificate of service showing that the pleading was placed in the hands of prison or jail officials for mailing on a particular date, if ... the pleading would be timely filed if it had been received and file-stamped by the Court on that particular date.

Thompson v. State, 761 So.2d 324, 326 (Fla.2000). Because the certificate of service indicates a filing date of May 12, 2010, three days before the expiration of the two-year time limit of rule 3.850(b), Thompson’s motion was timely filed.

The postconviction court also erred by finding successive Thompson’s claims that (1) his counsel was ineffective for failure to advise him to have his bond canceled while he was in jail, which resulted in a loss of jail credit, and (2) his plea was involuntary because his attorney and the court misadvised him that his jail credit would apply to all cases. Even though Thompson had previously filed an unsuccessful jail credit claim pursuant to Florida Rule of Criminal Procedure 3.800(a), which was denied in 2008, this would not preclude Thompson from raising jail credit issues under rule 3.850 if he is able to demonstrate that the credit was not awarded due to counsel’s ineffectiveness. See, e.g., Edmondson v. State, 854 So.2d 751, 751 (Fla. 2d DCA 2003) (affirming the denial of a rule 3.800(a) motion because the record indicated that the defendant was not entitled to the jail credit but observing that the defendant might have “a meritorious claim of ineffective assistance of counsel”); see also Blake v. State, 807 So.2d 772, 773 (Fla. 2d DCA 2002) (“Jail credit issues are appropriately brought in a rule 3.850 motion....”).

Accordingly, we reverse and remand for the postconviction court to consider the merits of Thompson’s claims.

Reversed and remanded.

MORRIS, J., Concurs.

VILLANTI, J., Concurs with opinion.

VILLANTI, Judge.

I fully concur in this opinion but write to address a burden of proof issue that arises from the supreme court’s decision in Thompson. The premise of Thompson is that the timeliness of prisoner mailings is determined based on the date the prisoner places the petition or other notice in the hands of prison officials for mailing. 761 So.2d at 326. That date is determined solely from the date alleged in the prisoner’s sworn certificate of service and not from the date those officials actually forward that mail to the clerk of court. Id. This presumption arises because prisoners have no control over the actual transmittal of their mail and must rely on prison officials to timely do so. Id.; see also Haag v. State, 591 So.2d 614, 617 (Fla.1992) (holding that a petition or notice of appeal “is deemed filed at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing to agents of the state”).

I note however that this presumption is rebuttable, and the State has the right to present evidence “to prove that the document was not timely placed in prison offi-dais’ hands for mailing.” Thompson, 761 So.2d at 326. The State in this case chose not to contest Thompson’s possibly self-serving assertion that he placed his motion in the hands of prison officials on May 12, 2010, even though the postmark is more than thirty days later. Thompson should be aware that “‘penalties for direct contempt of court or perjury may be imposed when movants are untruthful in postcon-viction proceedings.’ ” Whitty v. State, 5 So.3d 724, 725 (Fla. 2d DCA 2009) (quoting Oquendo v. State, 2 So.3d 1001, 1006 (Fla. 4th DCA 2008)). If the State researches this point and uncovers a prison mail log rebutting Thompson’s claim of timeliness, it may wish to consider whether pursuing contempt proceedings or initiating a perjury prosecution would be appropriate. While Thompson established a broad application of the mailbox rule for prisoners, it did not condone its application by artifice.

      . The certificate of service signed by Thompson reflects that he placed his petition in the hands of prison officials for mailing on May 12, 2010; however, the postmark on the envelope reflects a date of June 14.

      . I note that while Thompson specifically signed his motion "[ujnder penalties of perjury,” his certificate of service is below his signature on the oath and merely ''certifies” that he has placed his mail in the hands of prison officials on a specific date. I express no opinion on the ramifications of such a "certification” on either a contempt proceeding or perjury prosecution but instead leave that issue for the State’s consideration should it determine that the "certification” was false.


text:
    Shawn CHASE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-740.
    District Court of Appeal of Florida, Second District.
    May 11, 2011.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed. Our affirmance is without prejudice to any right Mr. Chase may have to file a timely motion under Florida Rule of Criminal Procedure 3.850 addressing the issues raised in this appeal.

SILBERMAN, WALLACE, and MORRIS, JJ., Concur.


text:
    Richard PILLAJO, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4260.
    District Court of Appeal of Florida, Second District.
    May 11, 2011.
   PER CURIAM.

Richard Pillajo appeals an order dismissing his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We dismiss this appeal because we lack jurisdiction. Neither the dismissal of a motion filed pursuant to rule 3.850 with leave to refile nor the denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c) is appealable. See Williams v. State, 884 So.2d 374, 375 (Fla. 2d DCA 2004) (explaining that dismissing a pleading with leave to amend “renders the order nonfinal and nonap-pealable”); Riggs v. State, 847 So.2d 1037, 1038 (Fla. 1st DCA 2003) (explaining that “an order denying a motion to mitigate sentence is not a directly appealable order”).

In its order responding to Pillajo’s rule 3.850 postconviction motion, the court dismissed the motion with leave to refile until the expiration of the two-year timeframe for such motions. Having dismissed Pilla-jo’s motion under rule 3.850, the court then elected to consider it as having been filed as a motion for reduction or modification of sentence pursuant to rule 3.800(c). The court denied Pillajo’s motion under rule 3.800(c), but included language stating that Pillajo could appeal the order within thirty days. Taking the court’s advice, Pillajo did so. Because, the appellate court has no jurisdiction to review the exercise of a trial court’s discretion in ruling on a rule 3.800(c) motion, we dismiss this appeal. In addition, we take this opportunity to encourage the trial courts of this district to excise language concerning appellate rights from their orders on rule 3.800(c) motions.

Dismissed.

SILBERMAN, KELLY, and MORRIS, JJ., Concur.


author: WHATLEY, Judge.

text:
    Jorge PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4838.
    District Court of Appeal of Florida, Second District.
    May 11, 2011.
    Jorge Perez, pro se.
   WHATLEY, Judge.

Jorge Perez filed a motion to vacate plea, judgment, and sentence pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court issued an order and explained simply that the court heard legal argument at a September 3, 2010, hearing, made findings on the record at that hearing, and denied the motion under the totality of the circumstances. However, the postconviction court did not attach a copy of the transcript of this hearing to its order, and the clerk of the circuit court has verified that no transcript of this hearing has been filed in the circuit court record.

The problem this court encounters with the postconviction court’s order is not unlike that created when a postconviction judge simply stamps “denied” on a motion: we are left to review a barebones order without any insight into the court’s reasoning. See Dorsey v. State, 36 So.3d 690, 690 (Fla. 2d DCA 2009); Suleiman v. State, 861 So.2d 1175, 1175-1176 (Fla. 2d DCA 2003). When denying a motion for post-conviction relief, the court “must provide an explanation of the reasons for the denial and attach any relevant portions of the record to support the denial.” Perry v. State, 872 So.2d 1017, 1017 (Fla. 2d DCA 2004).

Accordingly, we reverse this order. On remand, if the postconviction court again summarily denies the motion, it shall enter an explanatory order and attach relevant portions of the record to refute Mr. Perez’s claim.

Reversed and remanded.

CRENSHAW and BLACK, JJ., Concur.


author: CIKLIN, J.

text:
    Antonio LULE, Appellant, v. Marta I. LULE, Appellee.
    No. 4D10-817.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Julia Wyda of Sasser, Cestero & Sasser, P.A., West Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   CIKLIN, J.

Antonio Lule, the husband below, appeals the trial court’s final judgment of dissolution of marriage. The final judgment did not contain the requisite statutory findings for either the distribution of marital assets and liabilities or for the trial court’s award of alimony. Because of these errors and omissions this matter must be necessarily reversed and remanded.

The husband and wife were married in 1981 and separated in 2006, with no minor children from the marriage. On January 22, 2009, the trial court issued a final judgment of dissolution of marriage which, among other findings, awarded the wife the marital home as lump sum alimony because of the husband’s abandonment and an additional $250 per month of unspecified alimony.

“A trial court’s equitable distribution of marital assets is reviewed for an abuse of discretion.” Rafanello v. Bode, 21 So.3d 867, 869 (Fla. 4th DCA 2009).

Section 61.075(3), Florida Statutes (2008), directs trial courts as to the distribution of marital assets and liabilities:

In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability....

§ 61.075(3), Fla. Stat., (2008).

The final judgment simply does not comply with the statute. Most significantly, the trial court awarded all interest in the marital home to the wife without any findings as to its value or what interest the parties had in it prior to the dissolution. Without such findings, it is impossible for this court to engage in a meaningful review of the trial court’s distribution scheme. Finally, the trial court must make reference to the equitable distribution factors in 61.075(1), which the trial court did not do.

This and other courts have reversed final judgments of dissolution when the trial court failed to comply with 61.075(3). See, e.g., Dorsett v. Dorsett, 902 So.2d 947, 954 (Fla. 4th DCA 2005) (finding that “the trial court erred by not making written findings identifying and assigning values to the marital assets and liabilities, in violation of section 61.075, Florida Statutes”); Pignataro v. Rutledge, 841 So.2d 636, 638 (Fla. 2d DCA 2003) (reversing because “the final judgment does not identify or value any of the parties’ assets or liabilities, and it provides no factual findings to support the distribution scheme”); Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999) (reversing a final judgment because it awarded the husband’s interest in the marital home to the wife without providing a valuation of the marital home); Singleton v. Singleton, 696 So.2d 1338, 1338-39 (Fla. 4th DCA 1997) (reversing a final judgment because, among other reasons, it did not comply with 61.075(3)).

In the instant case, the trial court awarded the husband’s interest in the marital home to the wife as lump sum alimony solely because the husband “abandoned” the marriage. The final judgment states:

The Court finds that the Husband abandoned the marriage and the marital home to set up a living arrangement with the mother of his son, who is now 10 years old. As such, the court awards as lump sum alimony the Husband’s interest in the marital home to the Wife.

“[T]he nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court.” Mondello v. Torres, 47 So.3d 389, 396 (Fla. 4th DCA 2010) (quoting Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003)) (internal quotation marks omitted). As such this court reviews alimony awards for an abuse of discretion. Id.

“In determining a proper award of alimony, a court must consider the factors set forth in section 61.08(2), Florida Statutes.” Id. Section 61.08(2), Florida Statutes (2008), states that a trial court must “consider all relevant factors” and then provides a non-exhaustive list of the factors. “Section 61.08(2) ... requires the trial court to consider any relevant economic factors, including standard of living during the marriage, age, earning ability, value of each party’s estate and contribution to the marriage. The trial court must make findings of fact regarding these indi-cia.” Ryan v. Ryan, 927 So.2d 109, 112 (Fla. 4th DCA 2006). Finally, section 61.08(1), Florida Statutes (2008), permits the trial court to “consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.”

The trial court awarded the wife all of the husband’s interest in the marital home as lump sum alimony. This court has reviewed the proper predicate findings that must be made by a trial court in order to award lump sum alimony:

[T]wo predicates have evolved for the award of lump-sum alimony. The first of these is that the trial court must find some special necessity for lump-sum payment of alimony. If support is needed, there must exist unusual circumstances which would require a non-modifiable award of support. These findings of special circumstances must be something above and beyond the justifications for an award of permanent periodic alimony.

Rosario v. Rosario, 945 So.2d 629, 632 (Fla. 4th DCA 2006) (citations omitted). As we previously indicated, it is impossible for this court to review the appropriateness of the lump sum alimony award without any valuation as to the house and the parties’ interest in it. Additionally, the trial court does not appear to have considered the alimony factors listed in section 61.08(2) either. “Where the circumstances show no necessity nor legal justification, a distribution of marital property that creates such an inequitable impact constitutes an abuse of discretion.” Id. (quoting Jessee v. Jessee, 839 So.2d 842, 843 (Fla. 3d DCA 2003)). While we are unable to review the propriety of the lump sum award of the marital home to the wife based on the husband’s apparent infidelity without a valuation, we note that this court has previously reversed an award of the marital home as lump sum alimony based on the husband’s adultery when the results were grossly unequal. See Rosario, 945 So.2d 629 (reversing the lump sum award of the marital home when the overall distribution scheme resulted in the wife receiving $255,000 in net assets and the husband receiving $15,000 in net assets, or 94% to 6%).

As to its second award of alimony—the husband to pay the wife $250 per month indefinitely—the only factual finding included in the final judgment was that the marriage was long term and that the wife made $2099 per month and the husband made $2076 per month. There is no finding that the wife was in need of alimony, merely that she was “entitled” to it. See Eckert v. Eckert, 29 So.3d 381, 383 (Fla. 5th DCA 2010) (reversing because the final judgment did not include any findings on the wife’s need for alimony). It is also unclear from the final judgment what kind of alimony it awarded — it merely orders the husband to pay $250 per month in “alimony.” Failure to demonstrate proper consideration of the alimony factors in the final judgment is a sufficient error to warrant reversal. See, e.g., Ryan, 927 So.2d at 112. Because the final judgment did not contain virtually any of the alimony factors required by 61.08(2), we must remand this matter to the trial court.

The husband offers a final argument— that the alimony award was unreasonable because the husband makes nominally less income per month than the wife. We choose not to address this argument because the final judgment does not contain the required findings to justify the award of any type of alimony to the wife.

We therefore reverse and remand the final judgment of dissolution with instructions that the trial court craft a distribution scheme and alimony award that contains the required findings and complies with the corresponding statutes.

Reversed and remanded for further proceedings.

HAZOURI and MAY, JJ., concur.


text:
    Lennon ANDERSON, Appellant, v. VANGUARD CAR RENTAL USA INC., Appellee.
    No. 4D10-694.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.

      Lennon Anderson, Coral Springs, pro se.
    Steven A. Siegel and Philip R. Marchion of Fisher & Phillips LLP, Fort Lauder-dale, for appellee.
   CIKLIN, J.

Lennon Anderson appeals a final order dismissing his complaint against Vanguard Car Rental (“Vanguard”) with prejudice based on the doctrine of res judicata. The trial court had found that Anderson’s complaint involved the same parties and issues as a federal complaint that had been dismissed with prejudice. Although Anderson had originally included state law claims in his federal complaint, Anderson voluntarily withdrew all of his state claims from the federal ease before the federal court dismissed the complaint with prejudice. Because the federal court’s dismissal with prejudice did not include a judgment on the merits on any state law claims, we reverse the order dismissing Anderson’s claim on the basis of res judicata.

On August 11, 2005, Anderson, proceeding pro se, filed a complaint against his former employer, Vanguard, in the United States District Court for the Southern District of Florida. The federal court dismissed this complaint and a subsequent amended complaint without prejudice for failure to state a claim upon which relief could be granted. Anderson then filed a second amended complaint on August 10, 2007. This second amended complaint contained five counts, three of which were based on Florida law.

On July 6, 2007, Anderson filed a complaint in the Broward County circuit court based on the same facts as the federal complaint. Anderson’s complaint filed in state court contained four of the same counts as the federal complaint. On August 31, 2007, Vanguard filed a motion to dismiss or alternatively to stay proceedings in state court alleging that the parties and issues in the state ease were identical to those in the federal case. On November 7, 2007, before Vanguard’s motion was heard, Anderson filed a notice of voluntary dismissal in federal court, dismissing the counts based on state law claims. The state trial court subsequently granted the motion to stay until the federal case was resolved.

On February 29, 2008, the federal court granted Vanguard’s motion to dismiss with prejudice for failure to state a claim for which relief could be granted. The Eleventh Circuit Court of Appeals affirmed the federal district court’s order on March 13, 2009 and the United States Supreme Court denied Anderson’s petition for a writ of certiorari on October 13, 2009, effectively ending all federal avenues of appeal.

On November 24, 2009, Vanguard filed a motion to lift the stay and dismiss Anderson’s pending state action. The trial court ultimately granted Vanguard’s motion to dismiss with prejudice based on res judicata.

Anderson now appeals this dismissal arguing that because he had voluntarily dismissed those counts of his federal suit which were based on state law, the federal court never reached a final judgment on the merits with respect to any state law claim; therefore, he argues, his state law claims are not proeedurally barred by the federal court ruling. We agree.

Our review of a trial court’s order dismissing a complaint based on the application of res judicata is de novo. See W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So.3d 79, 82 (Fla. 4th DCA 2010). “Res judicata is a judicial doctrine used to bar parties from relitigating claims previously decided by a final adjudication on the merits.” Id. at 82-83 (citation omitted).

When res judicata is asserted based on a prior federal court’s judgment, Florida courts apply federal claim preclusion principles. Dalbon v. Women’s Specialty Retailing Grp., 674 So.2d 799, 801 (Fla. 4th DCA 1996). “Federal courts apply res judicata when (1) there has been a final judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) in a case with identical parties, (4) on the same cause of action.” Andujar v. Nat’l Prop. & Cas. Underwriters, 659 So.2d 1214, 1216 (Fla. 4th DCA 1995) (citing Hart v. Yamaha-Parts Distribs., Inc., 787 F.2d 1468 (11th Cir.1986)). Here, neither party disputes that there has been a final judgment on the merits nor that the parties are identical. The issue is whether the causes of action in the federal and state lawsuits are identical.

In Andujar, we held that “causes of action must arise under the same sovereign’s laws in order to be identical.” Id. at 1216. Thus, a Florida state law claim and a federal claim are not identical under federal preclusion law even if the claims “apply to the same transaction or occurrence.” See id.

This does not mean, however, that a federal court’s final judgment cannot bar a state law claim. Under the doctrine of pendent jurisdiction, a plaintiff may assert related state law claims along with federal claims in federal court and thereby give that court discretion to exercise jurisdiction over state law claims as to which it otherwise lacked jurisdiction. See Dalbon, 674 So.2d at 800-01. If a federal court reaches a final judgment on the merits on any state law claim, then all state law claims based on the same transaction or occurrence are proeedurally barred from being litigated in state court. Id. at 801. This is because under federal law, “ ‘res judicata, or claim preclusion, bars the filing of claims which were raised or could have been raised in an earlier proceeding.’ ” Id. (quoting Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir.1990)).

Here, the federal court dismissed Anderson’s second amended complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. In its final order, however, the federal court, noting that all of Anderson’s claims based on state law had been voluntarily dismissed, only discussed the merits — or lack thereof — of Anderson’s claims based on federal law. Thus, the final order did not reach a judgment on the merits of any state law claim.

Vanguard argues that all of Anderson’s claims are procedurally barred because Anderson originally filed state law claims in federal court, and even though the state claims were voluntarily dismissed, the claims could have been brought in federal court. That is, according to Vanguard, the federal court retained jurisdiction over the state law claims even after Anderson’s voluntary dismissal of those claims. This argument, however, is unpersuasive.

In Bosdorf v. Sinnamon, 804 So.2d 510 (Fla. Sd DCA 2001), the Third District held that a plaintiffs voluntary dismissal with prejudice of a wrongful death claim under the Death on the High Seas Act in a North Carolina federal court did not bar the same claim in a Florida circuit court. Id. at 512. The court wrote that, “A Rule 41 dismissal in a federal court, even with prejudice, may bar refiling of the same claim in that court, but is not necessarily sufficient to bar refiling of the claim in a different court.” Id. (citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)); see also Tyson v. Viacom, Inc., 890 So.2d 1205, 1210 (Fla. 4th DCA 2005) (en banc) (“One of the requirements for res judicata to apply is that the claim must have been adjudicated on the merits. A voluntary dismissal without prejudice will not support a claim of res judicata.” (quoting Froman v. Kirland, 753 So.2d 114, 116 (Fla. 4th DCA 1999))).

Thus, Anderson’s voluntary dismissal of his state law claims in federal court does not bar adjudication of those claims in a Florida state court. Accordingly, because the federal court’s final judgment did not include a judgment on the merits of any of Anderson’s state law claims, the trial court erred in dismissing Anderson’s state law claims based on res judicata. Therefore, we reverse the trial court’s order which dismissed Anderson’s complaint with prejudice on the basis of res judicata and remand for further proceedings on the merits.

Reversed and remanded for reinstatement of the complaint.

HAZOURI and MAY, JJ., concur.

      . Anderson alleged the following causes of action: (I) Deliberate Indifference; (II) Outrageous Conduct; (III) Breach of Contract; (IV) Conspiracy; and (V) Wrongful Termination. Counts II, III, and V were based on Florida law.

      . In fact, the complaint filed in the state circuit court contained thirteen pages of alleged facts that were virtually identical to the facts asserted in his second amended complaint in federal court.

      . Vanguard argues that Andujar is limited to causes of action based on statutoiy law. This argument is unpersuasive, however, as Florida common law claims are also part of Florida's laws, and therefore arise under a different sovereign than claims based on federal law.

      .The federal court had originally dismissed Anderson's first two complaints without prejudice for failure to state a claim. Those complaints did include state law claims. Nevertheless, a dismissal without prejudice is not a judgment on the merits under federal law. See S. Coatings, Inc. v. City of Tamarac, 916 So.2d 19, 21 (Fla. 4th DCA 2005) ("[Tjhe federal court’s dismissal without prejudice of [plaintiff’s] state law pendent claims is not a judgment on the merits and, therefore, not res judicata.”).

      . The court in Bosdorf noted that ’’[s]tate and federal courts have concurrent jurisdiction to hear wrongful death claims under the Death on the High Seas Act.” 804 So.2d at 512 n. 4 (citation and quotation marks omitted).

      . Any of Anderson's claims, however, which are based solely on federal law are procedurally barred.


text:
    M.S., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D10-3052.
    District Court of Appeal of Florida, Third District.
    May 11, 2011.

      Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, for appellant.
    Karla Perkins, Appellate Counsel, for the Department of Children and Families.
    Before GERSTEN and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

M.S. (“the mother”) appeals from an order adjudicating her minor child, J.B., dependent. We reverse.

The police investigated J.B.’s father in connection with a drug sting. When police officers went to arrest J.B.’s father, the mother opened the door to the home. J.B. was watching television in the room. Upon searching the home, the officers found unsecured weapons and drug paraphernalia in a bedroom closet. A relative took J.B. away and the officers arrested both parents. The next day, the police released the mother, and the State dismissed the charges against her. Thereafter, the Department of Children and Families (“DCF”) took custody of J.B. and filed a petition to have the child declared dependent as to both the father and the mother.

At the adjudicatory hearing, there was conflicting evidence concerning whether the mother and J.B. lived with the father. The mother testified that they did not live with the father, but the grandfather testified that they did. Both the mother and J.B.’s grandfather testified that the father kept the door to his bedroom locked. The mother also stated that she never left J.B. alone in the bedroom.

The trial court determined that DCF proved that both the father and the mother neglected the minor child by allowing J.B. to live in an environment that causes the child’s physical, mental, or emotional health to be significantly impaired. The trial court adjudicated J.B. dependent as to both the father and the mother. The mother appeals from this adjudication.

The mother asserts that the trial court erred in finding that she neglected J.B. because the evidence did not prove that the mother allowed the child to live in an environment which caused the child harm. DCF contends that the trial court’s ruling is supported by competent and substantial evidence. We agree with the mother.

Section 39.01(44), Florida Statutes (2010), defines “neglect” as occurring when “a child is permitted to live in an environment when such ... environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” Therefore, to adjudicate dependency based on neglect, the trial court must find that the child’s physical, mental, or emotional health has been, or is at risk of being, significantly impaired. K.R. v. Dep’t of Children & Families, 784 So.2d 594, 598 (Fla. 4th DCA 2001).

Here, DCF alleged neglect based on the father selling drugs out of the home and the presence of the unsecured weapons. The evidence, however, did not support these allegations. Assuming, arguen-do, that the mother and child lived with the father, DCF presented no evidence that the father sold drugs out of the home. The father’s arrest resulted from a sting operation away from the home.

With regard to the weapons, both the mother and the grandfather testified that the father kept his bedroom door locked. The mother further testified that she did not leave J.B. alone inside the bedroom. Consequently, although the weapons themselves may have been unsecured, the child did not have access to the weapons.

Additionally, DCF presented no evidence showing that J.B.’s physical, mental or emotional health was significantly impaired or was at risk of such impairment. Thus, the evidence did not meet the statutory requirements for a dependency adjudication based on neglect.

Accordingly, we reverse the trial court’s adjudication order.

Reversed and remanded.


author: KELLY, Judge.

text:
    MORGAN & MORGAN, P.A., Appellant, v. GUARDIANSHIP OF Larry McKEAN, Appellee.
    No. 2D09-5098.
    District Court of Appeal of Florida, Second District.
    May 13, 2011.

      Celene H. Humphries of Brannock & Humphries, Tampa, and Joseph Linnehan of Morgan & Morgan, P.A., Fort Myers, for Appellant.
    Stacy L. Sherman, Fort Myers, for Ap-pellee.
   KELLY, Judge.

Morgan & Morgan, P.A., appeals from the order which denies it an award of attorney’s fees for services rendered on behalf of Larry McKean. Because the trial court failed to apply the appropriate legal standard to determine an award of fees under a quantum meruit theory, we reverse and remand for further proceedings.

This suit arose when Beth Brockmann filed a sworn petition in the trial court seeking a determination of the amount of attorney’s fees due to Morgan & Morgan for legal services rendered on behalf of her brother, Larry McKean. According to the petition, Mr. McKean was severely injured in a motorcycle accident. Ms. Brockmann contacted Morgan & Morgan seeking representation in the case. She signed a contingency fee agreement the law firm had sent her by way of a “runner.” Within four weeks, Morgan & Morgan obtained a settlement with the insurance company for the policy limits. Ms. Brockmann was appointed her brother’s guardian a week after the settlement was reached. Thereafter, Ms. Brockmann “became dissatisfied with the services of Morgan & Morgan” and refused to sign any further agreements in her capacity as guardian. She claimed that the contingency fee agreement she previously signed was invalid and asked the court to “determine the fees due to Morgan & Morgan on a quantum meruit basis.”

The trial court found that a valid contingency fee contract did not exist and held a hearing to determine reasonable fees under a quantum meruit theory. Thereafter, the court entered an order denying any fees. In its order, the court recognized that law firms normally operating under contingency fee agreements are not accustomed to keeping accurate time records because of the nature of the practice; nonetheless, the court found that the lack of evidence of the time spent on the case was fatal to an award of fees. Specifically, the trial court found:

[T]here has not been enough evidence that this Court can set a fee based on evidence when there were no time records; there was [no] attempt to re-create the amount of time; the testimony and case manager who handled the file could say “well we had [ ] 80 hours or we had 20 hours” but they could not be more specific than that or at least didn’t in their testimony. Mr. Gaeta’s testimony was that of how a normal personal injury lawyer would handle the fee but again had no idea of the actual time involved. Without some specificity of time in much more detail than what was given to this Court at this hearing, it is hereby
ORDERED AND ADJUDGED that there is no basis for making the award and the Motion for Attorney Fees on the basis of quantum [meruit] is hereby denied.

On appeal, Morgan & Morgan argues that the trial court erred in finding that the contingency fee agreement Ms. Brock-mann signed was invalid. Alternatively, Morgan & Morgan argues that even if the agreement was invalid and unenforceable, the trial court erred in denying the firm any fees under a quantum meruit theory.

We affirm without comment the trial court’s finding that a valid contingency fee contract did not-exist and that the determination of fees was therefore proper under a quantum meruit theory. See Chandris, S.A. v. Yanakakis, 668 So.2d 180, 186 n. 4 (Fla.1995) (noting that, even though an attorney cannot claim fees based upon a noncomplying contingency fee agreement, the attorney would still be entitled to the reasonable value of his or her services on the basis of quantum me-ruit). However, we disagree with the trial court’s conclusion that fees could not be awarded solely because Morgan & Morgan did not keep, or attempt to recreate, accurate time records. Although time spent on a case is one factor to be considered under a quantum meruit theory, the trial court must consider “the totality of the circumstances surrounding the professional relationship” in computing the reasonable value of the services rendered. Rosenberg v. Levin, 409 So.2d 1016, 1022 (Fla.1982).

“Unlike an award of attorney’s fees to a prevailing party, a quantum me-ruit award must take into account the actual value of the services to the client.” Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So.2d 366, 369 (Fla.1995). “Thus, while the time reasonably devoted to the representation and a reasonable hourly rate are factors to be considered in determining a proper quantum meruit award, the court must consider all relevant factors surrounding the professional relationship to ensure that the award is fair to both the attorney and client.” Id. In Searcy, the court noted that factors which might be considered are actions taken by the attorney or client before or after discharge, and the benefit actually conferred on the client. Id. The weight to be given various factors and the ultimate determination as to the amount to be awarded are matters left up to the sound discretion of the court. Id.

“The basis for a quantum meruit award is essentially an equitable one. One person should not benefit from the work efforts of another under circumstances where the person doing the work has the reasonable expectation of being paid by the person benefitted, and the person ben-efitted has a reasonable expectation of paying for the work.” Hallowes v. Bedard, 877 So.2d 953, 957 (Fla. 5th DCA 2004). In this case, the appellee’s reasonable expectation of paying for the work was demonstrated by the filing of the petition asking the court to determine the amount of attorney’s fees due to Morgan & Morgan.

Because the court in this case failed to recognize that it had the discretion to consider factors other than time spent on the case, we reverse and remand for the trial court to reconsider whether to award fees under a “totality of the circumstances” standard. See Searcy, 652 So.2d at 369.

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

WHATLEY, J., and BAUMANN, HERBERT J., Associate Judge, Concur.

      . Joseph Gaeta, a personal injury attorney, was the expert witness Morgan & Morgan called to testify about a reasonable fee for the services rendered.


author: NORTHCUTT, Judge.

text:
    Jeffery L. ZEIGLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2548.
    District Court of Appeal of Florida, Second District.
    May 13, 2011.

      James Marion Moorman, Public Defender, and James Dickson Crock, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela J. Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Jeffery Zeigler appeals his convictions and sentences for trafficking, sale, and possession of cocaine. We affirm the convictions without further comment, but we must reverse the sentences and remand for resentencing by a different judge.

The convictions and sentences under review here arise from a single trial and sentencing encompassing three charges in two cases. In circuit court case 06-27419, Zeigler was charged with trafficking in more than 28 but less than 200 grams of cocaine. In circuit court case 07-7843, Zeigler was charged with two counts each of sale and possession of cocaine occurring on two separate dates. The trafficking charge occurred on the same day as one set of the sale and possession charges. The other sale and possession charges were severed and are not at issue here. Following Zeigler’s convictions, he was sentenced to a total of forty-five years in prison: thirty years with a three-year mandatory minimum for trafficking, a consecutive fifteen years as a habitual offender for one sale, and a concurrent five years for one possession.

Just before the start of Zeigler’s jury selection, the trial judge engaged in a discussion with him, the origin of which is not disclosed in the transcript. The judge outlined and explained the various cases pending against Zeigler. In addition to the charges set for trial that day, Zeigler had pending charges of burglary, fleeing to elude, and drug possession. The judge advised Zeigler that he faced a potential exposure of 155 years in prison. The judge further observed that the prosecutor’s “job by law is to seek the maximum penalty,” while the court’s job was to impose a lawful sentence if Zeigler was convicted. Referring specifically to the charges to be tried that day, the judge described his understanding of the underlying facts and then said that Zeigler faced a maximum penalty of ninety years. He ultimately assessed the State’s case as a “slam dunk for the prosecutor.” The judge then said to Zeigler: “So, you want to go to trial? You know, everybody can go to trial. Anybody can go to trial, but realistically, what are [your] chances? Realistically, they’re not too good. So, I’ll give you a few minutes to talk to your lawyers” while the bailiffs gathered the prospective jurors.

When the proceedings resumed, the defense attorneys announced that Zeigler wanted to enter an open plea based on their estimate that a fifteen-year sentence might be possible. But Zeigler quickly changed his mind when the judge began the plea colloquy and referred to a lawful sentence rather than promising a fifteen-year sentence. The judge then ended the colloquy and called for the start of jury selection. At that point, the prosecutor announced that he was ready to try the case and that his intention was to seek a sixty-year sentence after trial. The judge called for the start of the trial, telling the defense attorneys that “if your client wants to roll the dice, let him.” Before bringing in the prospective jurors, the judge concluded by saying that Zeigler would get, “one way or another, a lawful sentence” and that Zeigler would probably “rue the day that [he] didn’t dispose of the case.” Thereafter, a jury was selected, and the trial proceeded. As mentioned earlier, Zeigler was ultimately sentenced to forty-five years in prison.

Zeigler argues that the judge’s remarks raise a presumption of vindictive sentencing and a constitutional due process violation of his right to trial. “[T]he law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.” Wilson v. State, 845 So.2d 142, 150 (Fla.2003) (citations and internal quotation marks omitted). Although leniency may be justified by a guilty plea, the reverse is not true; a harsher sentence is not justified by a not guilty plea and exercise of the constitutional right to trial. Id. In Wilson, 845 So.2d at 156, the supreme court held that the appropriate analysis is “a totality of the circumstances review ... to determine whether a defendant’s constitutional right to due process of law was violated by the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated.”

The relevant circumstances included the judge’s participation in plea negotiations, the sentence imposed, and factors such as:

(1) whether the trial judge initiated the plea discussions with the defendant in violation of [State v.] Warner, [762 So.2d 507 (Fla.2000)]; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

845 So.2d at 156 (footnote omitted).

Vis-á-vis the first factor, although the record does not show that the judge initiated plea negotiations, he did advocate a plea by warning Zeigler of the potential consequences of proceeding to trial. See Wilson, 845 So.2d at 154 (citing McDonald v. State, 751 So.2d 56 (Fla. 2d DCA 1999)), as an example showing “judicial vindictiveness may arise where the trial judge does not make the offer itself but, rather, becomes actively involved in an unsuccessful plea bargaining discussion between the State and the defendant”). As to the second factor, the judge’s remarks also evidenced a departure from the role of impartial arbiter by endorsing the strength of the State’s case and telling Zeigler that he would “rue the day” he decided to exercise his constitutional right to a trial.

Because the case involved a short-lived attempt at an open plea, the record does not afford a true comparison of an offer to a sentence as suggested by the third factor. We note that the judge did not reject out of hand the defense suggestion of a fifteen-year sentence, nor did he agree. Regarding the fourth factor, the record contains no explanation for the sentences beyond the serious nature of the charges and the prosecutor’s determination to seek maximum penalties. But we conclude that the presumption arises here from the first two factors, so that the burden shifts to the State to dispel the presumption.

As regards factors (1) and (2), if the judge participates in the plea negotiations beyond what is contemplated by Warner, or by his or her comments appears to have departed from the role of a neutral arbiter, then these actions alone may give rise to a presumption of judicial vindictiveness that would shift the burden to the State to produce affirmative evidence on the record to dispel the presumption.

Wilson, 845 So.2d at 156. Here, the judge actively advocated for Zeigler to enter an open plea and then observed in rather ominous terms that he would regret not doing so. See State v. Warner, 762 So.2d 507, 514 (Fla.2000) (“To avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.”). Further, our review of the record has disclosed no facts sufficient to dispel the presumption and appearance that Zeigler received lengthier sentences because he exercised his right to trial. Therefore, we reverse the sentences and remand for resentencing before a different judge. See Wilson, 845 So.2d at 159.

Reversed and remanded for resentenc-ing.

LaROSE and CRENSHAW, JJ., Concur.

      . We take other comments by the judge to be an expression of the prosecutor’s stated position in this case to seek a maximum penalty, rather than an expression of the prosecutor's perceived duty in every case to seek maximum penalties. The special responsibilities of a prosecutor are set forth in rule 4-3.8 of The Rules Regulating The Florida Bar. The comment to this rule notes that "Florida has adopted the American Bar Association Standards of Criminal Justice Relating to Prosecution Function.” ABA Standard 3-6.1 describes the prosecutor’s role in sentencing in part as follows:

        (a) The prosecutor should not make the severity of sentences the index of his or her effectiveness. To the extent that the prosecutor becomes involved in the sentencing process, he or she should seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities.


author: VILLANTI, Judge.

text:
    Ashley Marie COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1441.
    District Court of Appeal of Florida, Second District.
    May 13, 2011.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunley, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

This is in Anders appeal after modification of Ashley Cooper’s probation. Our independent review of the record reveals no issue of arguable merit, but we remand for entry of a revised order modifying probation that conforms to the trial court’s oral declaration.

Cooper admitted violating condition three of her probation by changing her residence without the knowledge and consent of her probation officer. The trial court orally found that she had violated condition three and modified her probation, extending it twelve months. However, the written order modifying probation does not conform to the trial court’s oral declaration because it does not reflect the specific condition of probation which Cooper violated. To avoid future confusion and to facilitate review, Feezel v. State, 463 So.2d 1244, 1245 (Fla. 2d DCA 1985), requires that the order be corrected to reflect the specific condition of probation violated. Thus, we affirm the modification of Cooper’s probation but remand the case for correction of the order modifying probation.

Affirmed; remanded with directions.

NORTHCUTT and DAVIS, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).