author: SILBERMAN, Chief Judge.

text:
    Heavy Patrell SHAVERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1708.
    District Court of Appeal of Florida, Second District.
    May 2, 2012.

      James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Upon consideration of the Appellee’s motion for rehearing- filed December 21, 2011, it is

ORDERED that the Appellee’s motion for rehearing is granted, in part. This court’s opinion dated December 7, 2011, is withdrawn, and the attached opinion is issued in its place. The opinion has been edited to include a harmless error analysis, but the result is unchanged.

Heavy Patrell Shavers seeks review of his judgment and life sentence for first-degree murder and grand theft. Shavers was convicted based on evidence that, after a night of partying, he shot a drug-dealer acquaintance for the cash he was known to carry. We reverse and remand for a new trial based on a legal inconsistency in the jury’s verdict. While our reversal renders the remainder of Shavers’ issues moot, we write to discuss Shavers’ objection to the principals jury instruction.

Shavers was indicted for first-degree premeditated murder while discharging a firearm (count one) and first-degree robbery while discharging a firearm (count two). At trial, the evidence established that the crime took place at a house shared by teenagers Labronx Bailey, Brandon Siler, Tavaris McCoy, and the twenty-one-year-old victim, Michael Denhof. On the night before the murder, the roommates partied at the house with David Peterson, Shavers, and two teenage girls. Shavers talked about robbing the victim, a known drug dealer who carried a lot of cash. Shavers asked several of the partiers to help him, but no one agreed. In the early morning hours, McCoy and Bailey left in Bailey’s car to take the girls home, and Siler went upstairs to go to sleep. Thus, Shavers, Peterson, and the victim were alone on the first floor. Peterson testified that, while Peterson looked on in shock, Shavers robbed and shot the victim with a pistol.

The evidence was undisputed that, later in the morning, Shavers and Bailey went on a spending spree with the victim’s drug money. Shavers and Bailey rented two hotel rooms and continued to party. Shavers was arrested after Peterson was interviewed and had fingered Shavers as the sole robber and shooter. Shavers’ defense was that Bailey, one of Peterson’s childhood friends, was the person who robbed and shot the victim. In support of this defense, counsel for Shavers impeached Peterson’s account of events with prior inconsistent statements and witness testimony.

Even though felony murder was not charged in the indictment, the parties agreed to a first-degree murder instruction that included both premeditated and felony murder theories. Over defense objection, the court also gave a principals instruction. The verdict form did not provide for separate findings for each theory but provided only for a general finding of guilty of first-degree murder. For purposes of the sentencing enhancement statute, the verdict form provided options for the jury to indicate whether Shavers discharged a firearm and inflicted death, discharged a firearm, possessed but did not discharge a firearm, or did not possess a firearm during the offenses.

The jury found Shavers guilty “as charged” of first-degree murder on count one but found that he did not possess a firearm. On count two, the jury found Shavers guilty of the lesser-included offense of grand theft. After the jury verdict, Shavers made a motion for judgment of acquittal in which he argued that the jury’s finding that he did not possess a firearm in count one negated a finding of premeditated first-degree murder and the jury’s verdict for the lesser-included offense of grand theft in count two negated a finding of felony murder. Also, because the facts did not support his guilt as a principal to first-degree murder, Shavers argued that he was entitled to acquittal on count one.

Shavers’ argument is one of inconsistent verdicts. As the State points out, there are two types of inconsistent verdicts: factually inconsistent verdicts and legally inconsistent verdicts. See State v. Cappalo, 932 So.2d 331, 334 (Fla. 2d DCA 2006). Factually inconsistent verdicts are permissible in Florida. Such “[ijnconsis-tent verdicts are ordinarily considered to arise from a jury’s exercise of its ‘inherent authority to acquit’ even if the facts support a conviction.” Id. (quoting State v. Connelly, 748 So.2d 248, 253 (Fla.1999)). Thus, a jury’s verdicts finding a defendant guilty of aggravated fleeing and eluding and attempted assault charges are permissible even though they are factually inconsistent with its verdicts finding the defendant not guilty by reason of insanity on other charges arising from the same incident. Id. at 335. Similarly, a jury’s verdict finding a defendant guilty of introducing contraband onto the grounds of a detention facility is permissible even though the jury found the defendant not guilty of possession of the same contraband in count two. Connelly, 748 So.2d at 252-53.

The types of inconsistent verdicts that are impermissible are legally inconsistent verdicts, which arise when a not-guilty finding on one count negates an element on another count that is necessary for conviction. Cappalo, 932 So.2d at 334. “Inconsistent verdicts thus are impermissible “where an acquittal of the underlying felony effectively holds the defendant innocent of a greater offense involving that same felony.’ ” Id. (quoting Gonzalez v. State, 449 So.2d 882, 887 (Fla. 3d DCA 1984)). One example of legally inconsistent verdicts is when a jury finds a defendant guilty of possession of a firearm during the course of a felony but finds the defendant guilty only of a lesser-included misdemeanor instead of the underlying felony. Id. Another example is when the jury finds the defendant guilty of felony murder but also finds him guilty of a misdemeanor instead of the qualifying felony. Id. These types of cases “involve an offense that as a matter of law cannot be committed unless another underlying offense has also been committed. The commission of the underlying offense is a necessary element of the other offense.” Id.

The jury’s finding in this case that Shavers did not possess a firearm was factually inconsistent with a guilty verdict for premeditated first-degree murder based on the shooting of the victim with a firearm. However, the verdict was not legally inconsistent because the use of a firearm is not an element of premeditated murder. See § 782.04(1)(a)(1), Fla. Stat. (2007) (setting forth the elements of premeditated murder). Thus, it was not necessary for the jury to find that Shavers possessed a firearm in order for the jury to find Shavers guilty of premeditated murder. Cf. Gonzalez v. State, 440 So.2d 514, 516 (Fla. 4th DCA 1983) (holding that jury’s finding of not guilty of possession of a firearm during the commission of a felony was not legally inconsistent with its finding of guilt on the robbery with a firearm charge). If this factual inconsistency were the only error in the verdict, we would affirm.

However, in addition to the premeditated murder theory in count one, the State pursued a felony murder theory that was legally interlocking with the robbery charge in count two. The jury did not find Shavers guilty of robbery in count two but found him guilty of the lesser-included offense of grand theft. Under section 782.04(1)(a)(2), Florida Statutes (2007), robbery is a qualifying felony for the offense of felony murder but grand theft is not. Thus, to the extent the jury’s verdict is based on felony murder, the verdict finding Shavers guilty of grand theft in count two is legally inconsistent with its verdict finding Shavers guilty of first-degree murder “as charged” in count one. See Brown v. State, 959 So.2d 218, 221 (Fla.2007) (holding that a conviction on the lesser-included charge of petit theft was legally inconsistent with a conviction for first-degree felony murder). And generally, such legally inconsistent verdicts require reversal for vacation of the felony murder conviction. See id. at 220, 223.

This case is complicated by the fact that the first-degree murder charge was presented on both theories of premeditated murder and felony murder with a general verdict form. The State argues that because the charge of premeditated murder is not legally interlocking with the robbery charge in count two, the first-degree murder conviction must stand. The State also argues that any error in the verdict was harmless in light of what it characterizes as the “overwhelming” evidence supporting the alternate theory of premeditated murder.

It is constitutional error when a jury’s general guilty verdict could have been based on a legally inadequate theory. See Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); U.S. v. Spellissy, 438 Fed.Appx. 780, 782-83 (11th Cir.2011). However, this constitutional error is subject to harmless error review. See Skilling v. United States, — U.S. —, —, 130 S.Ct. 2896, 2934, 177 L.Ed.2d 619 (2010); Hedgpeth v. Pulido, 555 U.S. 57, 61, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008); Spellissy, 438 Fed.Appx. at 783.

Under Florida’s harmless error test, the State bears the burden of establishing “beyond a reasonable doubt that the error did not contribute to the outcome.” Johnson v. State, 53 So.3d 1003, 1007 (Fla.2010) (citing State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)). This standard has also been described as requiring the record to establish beyond a reasonable doubt that the jury would have reached the same verdict absent the error. Galindez v. State, 955 So.2d 517, 523 (Fla.2007); DiGuilio, 491 So.2d at 1138.

The State argues that, under Florida’s harmless error test, there was no reasonable possibility that the acquittal of Shavers on the robbery charge affected the jury’s murder verdict. The State suggests that the evidence in support of the first-degree murder charge was overwhelming, arguing that it “presented eye-witness testimony establishing that [Shavers] plotted to steal money from the victim, attempted to enlist the help of another, and in the course of the theft, shot and killed the victim.” In its initial brief, the State explained its view of the evidence against Shavers as follows:

Here, the premeditated murder is well supported by direct evidence of [Shavers’] repeated statements that he wanted the victim’s money and wanted to know if anyone would do the deed with him; of the eyewitness’ account that [Shavers] shot the victim once, looked calmly at the witness and back at the victim, then shot him a second time while he was down on the ground. [Shavers’] subsequent admission to Daniel Ryals that he had just “hit a lick” further strengthened the case that [Shavers] was both the mastermind and the shooter. Proof that [Shavers] had cash, supplied drugs to others and bought a car right after the murder supported the State’s theory that he killed the victim for his money. While [Shavers] advanced the theory that La-bronx Bailey could have been the shooter, the eyewitness testimony rendered by David Peterson stood undisputed.

While this description of the evidence could support the State’s interpretation of events, the jury clearly did not come to the same conclusion. The jury found Shavers guilty of murder, but it specifically found that Shavers did not possess a firearm. And the jury did not find Shavers guilty of first-degree robbery with a firearm but found Shavers guilty of the lesser-included offense of grand theft. These findings very strongly suggest that the jury believed that Shavers was at the scene and participated in the theft but another person possessed the firearm and did the actual robbing and shooting. Thus, it is reasonable to conclude that the jury relied on the legally inadequate felony murder theory to support the murder conviction.

Further, the jury’s findings were not excluded by the State’s evidence. There was no physical evidence proving that Shavers was the shooter or was even at the scene at the moment of the shooting. In fact, there was only one eyewitness to the shooting who testified, David Peterson. And while his version of the shooting was undisputed in that another witness did not contradict it, his testimony was impeached on several important points.

First, Peterson had a close relationship with Labróme Bailey that would have supported the jury’s apparent belief that he accused Shavers to protect Bailey. Peterson had been friends with Bailey since grade school, but he had only known Shavers a couple of months. And, while Peterson was the only witness who testified regarding Shavers’ earlier statements about robbing the victim, several other witnesses gave Bailey a motive by testifying that Bailey and the victim had a heated argument just before the shooting.

Second, there was some evidence to suggest that Peterson himself may have been involved in the shooting and robbery. Peterson testified that he had called McCoy, who was driving Bailey’s car, just after McCoy left but before the shooting, and he asked McCoy to return and pick him up. But Bailey and McCoy did not return to the house; instead they waited in Bailey’s car on a dirt road on the other side of the cul de sac. Additionally, although he allegedly was an innocent bystander, Peterson fled the victim’s home at the same time as the shooter and while carrying a shotgun, a fact he initially failed to mention to the police.

Third, Peterson’s testimony regarding the events that occurred right after the shooting was contradicted by other witnesses. According to Peterson, he and Shavers ran through the cul de sac and got into Bailey’s car. Moments later, Bailey decided to return to the scene. Bailey told McCoy, who was driving, to stop the car, and Bailey exited on foot with Shavers following. But a neighborhood witness testified that she saw the same two men who entered Bailey’s car get out of the car and run in the direction of the victim’s house. Additionally, Peterson testified that McCoy took Peterson home in Bailey’s car after Bailey and Shavers returned to the scene. But a witness named Christopher Knott, who had not been one of the partiers at the victim’s home, testified that he drove Peterson home in his car on the morning of the crime.

Moreover, the State’s argument addresses the sufficiency of the evidence, which is not a substitute for a proper harmless error evaluation. See Johnson, 53 So.3d at 1007. In our view, a particularly significant factor in determining the effect of the acquittal of Shavers as to robbery on the first-degree murder conviction is the verdict form itself which suggests that the jury convicted Shavers based on the legally inadequate theory of felony murder. Reviewing the record as a whole, we conclude that the State has not established beyond a reasonable doubt that the jury convicted Shavers in count one on the premeditated murder theory, as opposed to the felony murder theory.

Our reversal renders the remainder of Shavers’ arguments moot. However, we note that the principals instruction given over Shavers’ objection was not supported by the evidence. As we discussed previously, the State’s theory was that Shavers shot the victim in the course of a robbery while witness Peterson looked on. Although there was evidence that Shavers attempted to solicit others to aid and abet his robbing the victim, there was no evidence that anyone agreed to act in concert with Shavers to commit the robbery. Shavers’ defense was that Bailey shot the victim while Peterson looked on. However, there was no evidence that, even if Bailey did shoot the victim, Shavers aided or abetted him. Accordingly, the evidence did not support the principals instruction. Cf. Lovette v. State, 654 So.2d 604, 606 (Fla. 2d DCA 1995) (holding that trial court erred in giving a principals instruction “because there was no evidence that Mr. Lovette acted in concert with anyone in committing the theft or the burglary” and “[t]he only evidence of any concerted effort would have been with respect to dealing in stolen property” after the crimes occurred); McGriff v. State, 12 So.3d 894, 895 (Fla. 1st DCA 2009) (holding that principals instruction was improper where “there was no evidence offered that Appellant worked in conjunction with anyone else to commit the crimes” even though the testimony established that he was standing in a group when the shooting occurred).

Reversed and remanded.

CASANUEVA, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . The State is permitted to proceed on a felony murder theory when an indictment charges first-degree premeditated murder despite the lack of notice. See Hannon v. State, 941 So.2d 1109, 1148-49 (Fla.2006); Anderson v. State, 841 So.2d 390, 404 (Fla.2003); Knight v. State, 338 So.2d 201, 204 (Fla. 1976).

      . See § 775.087(2), Fla. Stat. (2007).


source: Caselaw Access Project

author: CASE, JAMES R., Associate Senior Judge.

license: Public Domain

text:
    Roscoe BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-125.
    District Court of Appeal of Florida, Second District.
    May 2, 2012.

      Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   CASE, JAMES R., Associate Senior Judge.

Roscoe Brown appeals the revocation of his probation following a curfew violation. Because the trial court abused its discretion, we reverse the revocation and remand for reinstatement of Brown’s probation.

Brown was charged on October 21, 2003, with lewd and lascivious molestation on a fifteen-year-old involving brief, noncoer-cive, nonthreatening, and nonforceful contact. Brown entered an open plea and was sentenced to five years of incarceration followed by five years of probation. After serving the incarceration portion of his sentence, Brown was released on probation on November 26, 2008.

On July 21, 2010, after almost two years of probation without incident, Brown was not home when his probation officer arrived to conduct a curfew check. As the probation officer began to leave, Brown’s vehicle came around the corner, heading home. Brown spoke with the probation officer and admitted to arriving home twenty-five or thirty minutes beyond his curfew. He explained that he was out picking up job applications at his brother’s house, approximately a seven- to twelve-minute drive away, and that he missed his curfew because his brother had been running late. The probation officer searched Brown’s vehicle and his residence and found nothing illegal. The officer then notified Brown that she would be filing an affidavit of probation violation for being out past curfew. Later, when the probation officer advised Brown to turn himself in to the police rather than waiting to be arrested, he did so.

At the hearing on the violation, Brown’s probation officer testified that during the entire time Brown was on probation, he had participated satisfactorily in his sex offender counseling, had passed every drug test he had been given, was employed or working towards employment, had successfully kept driving logs, had not missed any of his court-ordered payments toward his sex offender counseling, and had not incurred any new law violations. Both Brown and his brother provided testimony that corroborated Brown’s assertions made on the night of the violation. Brown admitted to being out past curfew on this one occasion but argued the violation was not substantial.

The judge found Brown guilty of the probation violation, concluding that the State had “proven by competent substantial evidence that the defendant ... has violated his conditions of probation, specifically his curfew.” The judge also stated “This Court considers all terms of probation serious and ... curfew conditions extremely serious.” Consequently, the judge sentenced Brown to thirteen years of incarceration. Brown timely appealed.

In order to revoke a defendant’s probation, the facts of the case must “demonstrate a willful and substantial violation that is supported by the greater weight of the evidence.” Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003). In reviewing a revocation of probation, the appropriate standard is abuse of discretion. Id. Thus, the appellate court’s task is to “determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the defendant's violation was both willful and substantial.” State v. Carter, 835 So.2d 259, 262 (Fla.2002). The Florida Supreme Court has held that it is an abuse of a court’s discretion to apply a per se rule that certain single violations are not substantial as a matter of law. Id. at 261. This is because “[s]ueh a per se rule strips the trial court of its obligation to assess any alleged violations in the context of a defendant’s case.” Id. Instead, courts must consider each violation on a case-by-case basis to determine whether it is substantial.

Although the trial court has broad discretion in revocation proceedings, the decision to revoke a defendant’s probation should be made “only when the probation violation is both willful and substantial so as to indicate that probation will not work for that defendant.” Id. at 262; see also Ortiz v. State, 54 So.3d 1020, 1022 (Fla. 2d DCA 2011) (reinstating probation because the violation “did not demonstrate that [the probationer] was unfit for probation”). Otherwise, “[t]here may be circumstances where revocation is patently unfair.” Carter, 835 So.2d at 262.

On appeal, Brown argues that the trial court abused its discretion in revoking his probation. Brown admits that he violated his probation and concedes that it was willful, but argues that it was insubstantial. On the record before us, we cannot help but agree.

At the time of the violation, Brown had completed nearly two years of his probation without incident. He was not charged with, nor have there been allegations of, any'new law violations. Brown’s probation officer testified at the hearing that Brown had been in complete compliance with the terms of his probation leading up to the single curfew violation, even though the officer conducted a minimum of two random visits per month. She conceded that shortly after advising him to do so, Brown turned himself in to the police for his violation. And although the curfew violation was certainly not unavoidable, Brown’s reason for being late was innocuous — he was returning from his brother’s house where he had driven briefly to pick up job applications.

Additionally, a letter from Brown’s sex therapist was introduced into evidence which characterized Brown as an “active participant” in therapy who had made satisfactory progress and “was fully capable of successfully completing treatment.” Further, the letter indicated that Brown’s recidivism estimate was in the “Low” risk category and that, in his therapist’s professional opinion, the curfew violation at issue did not in any way increase Brown’s level of risk. No evidence was presented to rebut these assertions.

On this record, there is simply no basis for the conclusion that Brown is unfit for probation. In addition to revocation being “patently unfair” on these facts, the trial court abused its discretion. First, the trial judge concluded at the revocation hearing that the State had “proven by competent substantial evidence that the defendant ... has violated his conditions of probation.” As noted above, however, the State’s burden was actually to prove its case by the greater weight of the evidence. See Anthony, 854 So.2d at 747. The trial judge thus “failed to perceive the difference between the burden of proof on a party and the legal requirement that findings of fact shall be sustained if supported by competent, substantial evidence.” Pic N’ Save Cent. Fla., Inc. v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 601 So.2d 245, 249 (Fla. 1st DCA 1992). Although related, “[tjhese are two quite different concepts.” Id.

More important, however, the trial court appears to have applied a prohibited per se rule in revoking Brown’s probation. In broadly declaring all terms of probation “serious,” the trial court seems to have believed revocation was automatically appropriate because a curfew violation had been proven. The trial judge made no findings on willfulness or substantiality other than his blanket assertion that all curfew violations are “extremely serious.” This was an abuse of discretion because the trial court revoked Brown’s probation without addressing the violation in the context of his case. Properly viewed, the facts of Brown’s case do not support revocation. Accordingly, we reverse the order revoking Brown’s probation and remand with directions that Brown’s probation be reinstated.

Reversed and remanded with directions.

NORTHCUTT and MORRIS, JJ., Concur.

      . Brown later filed a motion to correct sentencing error, which was granted. The sentence was amended so that the five-year sentence that Brown originally served would count toward his new thirteen-year sentence.

      . Brown was required to pursue gainful employment as a condition of his probation. Notably, he was hired after submitting one of the applications he violated his curfew to procure.


author: WALLACE, Judge.

text:
    Lance SMITH and Thomas Allen, as Co-Personal Representatives of the Estate of Scott P. Smith, Deceased, Appellants, v. Astrid DePARRY, as Guardian ad Litem for Scott P. Smith, III, Appellee.
    No. 2D11-1851.
    District Court of Appeal of Florida, Second District.
    May 2, 2012.

      Sherri K. DeWitt of DeWitt Law Firm, P.A., Orlando, for Appellants.
    Charles E. Lykes, Jr., Clearwater, for Appellee.
   WALLACE, Judge.

Upon consideration of the Appellants’ motion for rehearing and for issuance of a written opinion filed December 27, 2011, it is

ORDERED that the Appellants’ motion is granted in part and denied in part. This court’s opinion dated December 9, 2011, is withdrawn, and the attached opinion is substituted therefor. In all other respects, Appellants’ motion is denied.

Lance Smith and Thomas Allen, as Co-Personal Representatives of the Estate of Scott P. Smith, deceased, appeal the probate court’s order denying their first amended petition to establish and to probate a lost or destroyed first codicil to the decedent’s last will and testament. Although the Co-Personal Representatives produced a copy of the alleged lost codicil, they failed to prove its content by the testimony of at least one disinterested witness as required by section 733.207, Florida Statutes (2010). Accordingly, we affirm the probate court’s order.

I. INTRODUCTION

The decedent, Scott P. Smith, owned two fox red Labrador Retriever dogs. The subject of the lost codicil was a bequest of $40,000 to establish a pet trust for the health, care, and welfare of the dogs. The initial trustee of the pet trust was Lance Smith, who was also one of the Co-Personal Representatives. When the Co-Personal Representatives filed their initial petition to establish the lost codicil, Lance Smith had already transferred $40,000 of the estate’s money to fund the pet trust and had assumed the care, custody, and control of the dogs.

Scott D. Smith, III, a minor, is the decedent’s grandson and a beneficiary. Astrid DeParry is the guardian ad litem (the GAL) for the minor. The GAL contested the Co-Personal Representatives’ petition to establish the lost codicil on behalf of the minor beneficiary.

II. THE FACTS

In their first amended petition, the Co-Personal Representatives sought, under section 733.207, to establish the decedent’s lost codicil dated October 24, 2007. The probate court held an evidentiary hearing and made detailed findings in its written order. The probate court noted that Mr. Allen was a longtime attorney for the decedent. On October 19, 2007, Mr. Allen traveled from his office in Orlando to the decedent’s residence in St. Petersburg where the last will and testament was formally executed. At that time, the decedent, at the age of 77, was in failing health. Simultaneously with the presentation of the will, and for reasons that were unclear, Mr. Allen presented to the decedent the first codicil to the will. The codicil established a $40,000 trust fund through which Lance Smith, the other Co-Personal Representative, would care for the decedent’s dogs. Upon presentation of the codicil to the decedent, Mr. Allen learned that a dog’s name had been misspelled. Thus Mr. Allen returned to his office, corrected the codicil, and then went back to the decedent’s home on October 24,2007.

Both Co-Personal Representatives testified at length about their recollection of the decedent’s execution of the codicil on October 24. Lance Smith advised the probate court that he negotiated the $40,000 figure ultimately included in the pet trust. And although Lance Smith initially sought $60,000 for the trust, he and the decedent reached a compromise on the $40,000 amount. According to the probate court, both Co-Personal Representatives demonstrated a clear and consistent recollection of the day’s events.

Following execution of the codicil, Mr. Allen retained possession of it and returned to his office in Orlando. There the document was misplaced, and it has never been found. The decedent eventually passed away on March 30, 2008.

The probate court made the following additional findings in its order:

Following [the] Decedent’s death, the Co-Personal Representatives filed a Petition for Administration of this estate on April 7, 2008. Although Paragraph 8 of that Petition disclosed the existence of the October 19, 2007 Will, neither Petitioner, under penalties of perjury, disclosed the existence of the Codicil. It’s difficult to understand why two competent, professional individuals, both with clear recollection of the signing of the Codicil, failed to remember the existence of a Codicil at the time they filed the Petition. That is particularly true where the Codicil had the effect of establishing a $40,000 trust fund through which one of the Co-Personal Representatives would pay for the upkeep of two dogs. On April 14, 2008, Letters of Administration were issued and the estate administration commenced. Approximately three (3) months after the Decedent’s death, Mr. Allen testified that he realized the Codicil was missing. He promptly notified his Co-Personal Representative. The following January 23, 2009, without having locat[ed] the missing Codicil, Mr. Smith, as Co-Personal Representative^] transferred $40,000 to himself as Trustee of a trust purportedly established by the missing Codicil. In June of 2009, a Federal Estate Tax Return Form 706 was filed reflecting the $40,000 transfer of funds. More than a year later without having located the missing Codicil, on July 12, 2010, the Petitioners filed the original request to Establish the Lost Codicil. No reason was given for the delay in advising the Court that a Codicil existed or that it had been lost in Mr. Allen’s office. Containing incorrect allegations as to the identity of the witnesses, it was necessary to amend the Petition, which is before the Court today.

The probate court noted that the Co-Personal Representatives offered into evidence unsigned copies of the first codicil to support their amended petition. In addition, they offered their own testimony; the testimony of Deborah Stegmeier, an employee of Mr. Allen; and the deposition testimony of Jennifer Torres, who had witnessed the decedent’s execution of the codicil that was later lost or destroyed.

III. THE APPLICABLE LAW

Section 733.207 outlines the procedure for establishing a lost or destroyed will:

Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

The term “will,” as used in the statute, includes a codicil. See § 731.201(40), Fla. Stat. (2010); see also Fla. Prob. R. 5.510 (stating additional requirements for the establishment and probate of a lost or destroyed will). Under the statute, the testimony of one disinterested witness is sufficient to prove the content of the lost will or codicil if the proponent can produce a “correct copy” of the instrument. Douglass v. Frazier (In re Estate of Musil), 965 So.2d 1157, 1159 (Fla. 2d DCA 2007); Bury v. DiLegge (In re Estate of Kero), 591 So.2d 675, 676-77 (Fla. 4th DCA 1992). In the absence of a correct copy, the testimony of two disinterested witnesses is required to prove the content of the lost will or codicil. Tartaglia v. Hatten (In re Estate of Hatten), 880 So.2d 1271, 1275 (Fla. 3d DCA 2004).

In the Estate of Parker litigation, the Fourth District Court of Appeal held that a preliminary, handwritten draft of a typewritten original of a lost will qualified as a correct copy under the statute. In re Estate of Parker (Parker I), 369 So.2d 1034, 1035-37 (Fla. 4th DCA 1979). On review by certiorari, the Supreme Court of Florida rejected the proposition that such a preliminary draft could qualify as a correct copy under the statute. In re Estate of Parker (Parker II), 382 So.2d 652 (Fla.1980). The court held that a preliminary draft is not a “correct copy” within the meaning of the statute for two reasons. First, “[i]t is not a ‘copy’ because a draft is not a double or a true transcript of an original writing.” Id. at 653-54. Second, “[i]t is not ‘correct’ because it is not the approved or conventional way of making a copy of an original writing.” Id. at 654.

In the Parker II case, the supreme court construed the statutory term “correct copy” as follows:

The word “copy,” then, means a double of an original instrument, such as a carbon or photostatic copy. The word “correct” modifies and qualifies the word “copy.” It strengthens the already strong word “copy.” We therefore conclude that the words “correct copy” means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy.

Id. at 653. A copy need not be conformed to qualify as a correct copy under the statute. In other words, there is no requirement that the copy bear the signature of the testator or the signatures of the witnesses. Carlton v. Sims (In re Estate of Carlton), 276 So.2d 832, 833 (Fla.1973); Stewart v. Johnson, 142 Fla. 425, 194 So. 869, 872 (1940); Brittingham v. Jarvis (In re Estate of Maynard), 253 So.2d 923, 924 (Fla. 2d DCA 1971); Bury, 591 So.2d at 676-77.

III. THE PROBATE COURT’S RULINGS

The probate court made two key rulings that the Co-Personal Representatives challenge on appeal. First, the probate court ruled that the copy of the codicil generated from Mr. Allen’s office computer did not qualify as a correct copy under the statute. Relying on the supreme court’s decision in Parker II, the probate court reasoned that the computer-generated copy of the missing codicil was a draft that did not qualify as a correct copy. Second, the probate court ruled that the testimony of the Co-Personal Representatives could not be used to prove the specific content of the codicil because they were not disinterested witnesses. The probate court concluded that the Co-Personal Representatives could not qualify as disinterested witnesses because the personal representative of an estate is specifically deemed to be an “interested person” under section 731.201(23).

We disagree with both of the probate court’s rulings. However, under the “tipsy coachman” doctrine, we are bound to affirm the probate court’s order if it reached the correct result, even if it reached that result for the wrong reason. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999); Johnson v. Allstate Ins. Co., 961 So.2d 1113, 1115 (Fla. 2d DCA 2007). In this case, we find an alternative basis for affirmance in the record. To explain our decision to affirm, we will examine each of the probate court’s rulings separately.

IV. THE COMPUTER COPY OF THE CODICIL

The Co-Personal Representatives proffered at the final hearing a copy of the codicil that they generated from the hard drive of the computer in Mr. Allen’s office that was used to prepare the original document. The probate court ruled that the computer copy was a “draft” that did not qualify as a “correct copy” within the meaning of section 733.207. Tracking the language of the supreme court’s decision in Parker II, the probate court stated that “ ‘[c]orrect cop/ means a copy conforming to an approved or conventional standard [and] this requires an identical copy such as a carbon or photo static copy.”

For three reasons, we think the probate court misread the supreme court’s holding in Parker II. First, in the Parker litigation, the “copy” of the alleged lost will produced for probate was a handwritten, preliminary draft of a later typewritten version of the original lost will. Parker II, 382 So.2d at 653; Parker I, 369 So.2d at 1035. In other words, the draft at issue in the Parker litigation differed substantially from the lost original will. Here, there was testimony from Deborah Stegmeier, Mr. Allen’s office assistant, that the content of the computer copy of the codicil was identical to the document she prepared for the decedent’s approval and signature. Thus the computer copy of the codicil was not a preliminary draft of the sort disapproved by the supreme court in Parker II.

Second, the probate court misconstrued the portion of the supreme court’s holding in Parker II referring to the requirement of “an identical copy such as a carbon or photostatic copy.” 382 So.2d at 653. Both the probate court and the GAL read this language as exclusive. In their view, the only type of copy that can be used to prove the content of a lost will or codicil under the statute is a carbon copy or a photocopy. Such an interpretation would preclude the use of a computer-generated copy. However, the supreme court’s language in Parker II is not so restrictive. In the court’s reference to “an identical copy such as a carbon or photostatic copy,” the carbon copy and the photostatic copy are merely examples of identical copies. See The American Heritage Dictionary of the English Language 1729 (4th ed. 2000) (defining the idiom, “such as” to mean “[f]or example”). However, the carbon copy and the photocopy are not the only kind of copy that can qualify as an identical copy of an original document. Unquestionably, a copy of a document generated on a computer can be identical to — and indistinguishable from — the original.

Third, the supreme court decided the Parker II case in 1980. Although some personal computers were sold in the late 1970s, the personal computer did not come into general use in law offices and other businesses until the 1980s, after Parker II was decided. We do not think that the supreme court’s reference in 1980 to carbon copies and photostatic copies as examples of “an identical copy” was intended to limit for all time the types of copies that could be used to establish the contents of a lost instrument, regardless of future technological developments. Indeed, the legal profession in Florida is now reported to be on the brink of a transition to the paperless office and the paperless courthouse. See Gary Blankenship, E-filing’s Time is Now, Fla. B. News, Jan. 15, 2012, at 1; Gary Blankenship, E-filing’s Proponents: Get Ready, It’s Coming, Fla. B. News, Dec. 1, 2011, at 1. As we face this transition, it would be an anachronism to adopt a rule that a copy of a lost will or codicil retrieved from the hard drive of a computer or from a cloud database cannot be a “correct copy” within the meaning of section 733.207.

Nevertheless, the GAL argues that a “correct copy” can only be a carbon copy or a photocopy because “[a]ny other form of copy could have been or could easily be altered.” She points to the ease with which people can alter and manipulate documents on computers. We concede that people can readily alter documents on computers. But people can also alter carbon copies and photocopies. See generally 23 Am. Jur. POF 3d 621 § 22 (1993) (discussing various methods used to alter or manipulate photocopies); 20 Am. Jur. POF 265 §§ 27-30 (1968) (discussing the analysis of carbon paper and carbon copies to detect alterations). The possibility that an unscrupulous few may misuse a particular form of technology is not a reason to reject that technology entirely. Here, there was no evidence that anyone had altered the computer copy proffered as the copy of the codicil. It does not appear from our record that the GAL undertook to examine Mr. Allen’s computer to determine if the computer copy of the codicil had been altered. For these reasons, we find the GAL’s argument to be unpersuasive.

Thus, for the reasons discussed above, we conclude that the probate court erred in ruling that “the Co-Personal Representatives have failed to produce a ‘correct copy’ of the lost Codicil.”

Y. INTERESTED PERSONS AND DISINTERESTED WITNESSES

The general definitions section of the Florida Probate Code defines the term “interested person,” in pertinent part, as follows:

“Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person.

§ 731.201(23) (emphasis added). The probate court concluded that the Co-Personal Representatives could not qualify as “disinterested witnesses” under section 733.207 because each of them was deemed an “interested person” under the Probate Code. Once again, we disagree.

There is a significant distinction between the concept of an “interested person” under section 731.201(23) and the concept of “disinterested witnesses” as used in section 733.207. Under the Probate Code, the term “interested person” refers to a person’s or entity’s standing, i.e., the right to notice and an opportunity to be heard in a particular proceeding pending in a probate or guardianship matter. See Hayes v. Guardianship of Thompson, 952 So.2d 498, 507-08 (Fla.2006).

On the other hand, a person may be described as “disinterested” when he or she is “[f]ree from bias, prejudice, or partiality; not having a pecuniary interest.” Black’s Law Dictionary 536 (9th ed. 2009). It follows that a “disinterested witness”— as the term is used in section 733.207— refers to a person “who has no private interest in the matter at issue.” Black’s Law Dictionary 1740 (9th ed. 2009). To put it differently, a “disinterested witness” has no stake in the outcome of the matter in which he or she offers evidence. See The American Heritage Dictionary of the English Language 519, usage note (4th ed. 2000) (“In traditional usage, disinterested can only mean ‘having no stake in an outcome,’ .... ”). The probate court’s ruling erroneously assumed that an “interested person” under the Probate Code could not simultaneously be a “disinterested witness.”

The personal representative of an estate is an interested person in virtually every proceeding affecting the administration of an estate. Describing the personal representative as an interested person is another way of saying that he or she is entitled to notice and an opportunity to be heard before the matter under consideration is determined. A personal representative can be an interested person in a proceeding while remaining disinterested in the result of the proceeding. For example, a personal representative may have no private interest in the result of a proceeding to determine the entitlement of a surviving spouse to the elective share conducted in accordance with Florida Probate Rule 5.360(c). In that sense, the personal representative is disinterested. However, the personal representative would be an interested person entitled to notice of the proceeding and opportunity to be heard. Thus the personal representative can be an interested person but still participate in a proceeding as a disinterested witness. In reaching its ruling in this case, the probate coui't overlooked this significant distinction.

Nevertheless, the probate court reached the correct result in the matter before it. Although the Co-Personal Representatives were not legally disqualified from establishing the content of the lost codicil by virtue of their fiduciary roles, they were disqualified because they were both interested in fact. Mr. Smith and Mr. Allen each had a substantial private interest in the outcome of the proceeding to establish the lost codicil.

When questioned at oral argument, counsel for the Co-Personal Representatives did not contend that Mr. Smith qualified as a disinterested witness. Undeniably, he stood to gain or lose as a direct result of the probate court’s ruling on the petition to establish the lost codicil. Instead, counsel argued that Mr. Allen qualified as a disinterested witness. We disagree. Mr. Allen also had a direct stake in the outcome of the petition to establish the lost codicil.

Mr. Allen’s personal interest in the outcome derives from at least two factors. First, Mr. Allen was directly responsible for the loss or destruction of the codicil from which Mr. Smith was to benefit. An adverse ruling on the petition might result in a claim by Mr. Smith against Mr. Allen for damages. See Hare v. Miller, Canfield, Paddock & Stone, 743 So.2d 551, 553 (Fla. 4th DCA 1999) (“Intended third-party beneficiaries of testamentary documents are found to have standing in legal malpractice cases if they are able to show ‘that the testator’s intent as expressed in the will is frustrated by the negligence of the testator’s attorney.’ ”); Benedict v. Smith, 34 Conn.Supp. 63, 376 A.2d 774, 775 (Conn.Super.Ct.1977) (discussing an action brought by beneficiaries under a lost will against an attorney for alleged negligence in failing to produce the will or a copy of the will after the decedent’s death). Second, if Mr. Smith failed to return the $40,000 to the estate with interest, the beneficiaries might make a claim against Mr. Allen, as Co-Personal Representative, predicated on the default of his fellow fiduciary. See Eastman Co. v. Anyon, 116 Fla. 137, 156 So. 302, 303 (Fla.1934) (stating that the acts of one co-executor in the course of the administration of an estate within the scope of his duties are usually deemed binding on all co-executors) (citing Sullivan v. McMillan, 26 Fla. 543, 8 So. 450 (1890)). But cf. § 733.619(2) (“A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if personally at fault.”). Thus Mr. Allen, like Mr. Smith, did not qualify as a disinterested witness because of his direct stake in the outcome of the pending proceeding.

The remaining witnesses were unable to prove the content of the lost codicil as required by section 733.207. Deborah Stegmeier, Mr. Allen’s office assistant, prepared the codicil, as well as several other documents for execution by the decedent, on her computer in Mr. Allen’s Orlando office. However, Ms. Stegmeier did not accompany Mr. Allen to St. Petersburg for the execution of the codicil. She remained behind at his Orlando office. Thus, as the probate court observed, Ms. Stegmeier did “not have firsthand knowledge of what document may or may not have been presented to the [d]ecedent for his signature.” Instead, Ms. Stegmeier’s knowledge was limited to the documents prepared on her computer.

Jennifer Torres was one of the witnesses to the execution of the codicil and to a separate trust agreement. Ms. Torres candidly admitted that she did not read any of the documents to which she was a witness. Thus Ms. Torres could not testify to the content of the codicil signed by the decedent. Cf. Bury, 591 So.2d at 677 (holding that the testimony by a witness to the execution of a will that the carbon copy produced at the hearing was identical to the original will executed by the decedent was sufficient to meet the requirements of a “correct copy” under the statute for proving the content of the lost original). The Co-Personal Representatives did not call the other witness to the execution of the will to testify at the hearing.

To summarize, the Co-Personal Representatives proffered a “correct copy” of the lost codicil in support of their amended petition. However, they failed to prove the content of the lost codicil with the testimony of at least one disinterested witness as required by section 733.207.

VI. CONCLUSION

We disagree with both of the probate court’s rulings discussed above. Nevertheless, the probate court’s careful consideration of the facts and the legal issues in this matter is apparent in its thorough and comprehensive order. The probate court’s order has facilitated our review of this appeal. Because the probate court properly denied the amended petition to establish the lost codicil, we affirm the order under review.

Affirmed.

LaROSE and BLACK, JJ., Concur.

      . We initially disposed of this case by a per curiam affirmance without a written opinion. The Co-Personal Representatives filed a motion for rehearing including a request that the court issue a written opinion in accordance with Florida Rule of Appellate Procedure 9.330(a). We granted the motion in part and withdrew our original opinion. We now issue this opinion in its stead.

      . The other copy of the codicil offered in evidence by the Co-Personal Representatives was generated by their attorney from an attachment that had been e-mailed from Mr. Allen’s office to their attorney's office. The two copies contained identical language, but their make-up differed slightly because they were generated with different computer software.

      . See History of personal computers (Jan. 26, 2012, 8:38 p.m.), http://en.wikipedia.Org/w/ index.php?title=History_of_personaL computers & oldid=473394277.

      . "A cloud database is a database that typically runs on a Cloud Computing platform, such as Amazon EC2, GoGrid and Rackspace.” Cloud database (Jan. 11, 2012, 7:00 p.m.), http://en.wikipedia.org/w/index.php?title= Cloud-database & oldid= 470836337. "Cloud computing is the delivery of computing as a service rather than a product, whereby shared resources, software, and information are provided to computers and other devices as a metered service over a network (typically the Internet).” Cloud computing (Feb. 6, 2012, 4:38 a.m.), http://en.wikipedia. org/w/index.php?title=Cloud_computing & oldid=475340599.

      . Of course, we express no opinion on the merits of either of the potential claims against Mr. Allen. The possibility that such claims could be advanced and plausibly maintained is sufficient to give him a "private interest in the matter at issue.” See Black’s, supra (defining a disinterested witness as a person with no such interest).


author: MAY, C.J.

text:
    CITIMORTGAGE, INC., Successor by Merger to ABN Amro Mortgage Group, Inc., Appellant, v. August J. SYNURIA a/k/a August Synuria, et al., Appellees.
    No. 4D11-1912.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.

      Erin M. Berger of Kass Shuler, P.A., Tampa, for appellant.
    No brief filed on behalf of appellee.
   MAY, C.J.

Market price versus the sale price of a foreclosed home is questioned in this appeal from the trial court’s denial of a motion to vacate a foreclosure sale. The lender argues that its excusable neglect and the disproportionate sale price to the actual value mandates that the foreclosure sale be set aside. We agree and reverse the order denying the lender’s motion to set aside the sale.

The lender filed a foreclosure action against the homeowners. The trial court entered a final judgment of foreclosure in the amount of $41,580.97. The court set a foreclosure sale for December 8, 2010. The sale took place and the property sold to a third party for $800.

Eight days later, the lender filed a motion to vacate the foreclosure sale. The trial court denied the motion. Two weeks later, the lender filed an amended motion, the same in form and substance as the original motion, amended only as to the certificate of service. The lender argued the sale should be set aside because the price was grossly inadequate, the inadequacy resulted from mistake or other irregularity in the sale, and the sale was not properly noticed.

About a month and a half later, the third-party purchaser filed a motion to confirm the sale, directing the clerk to issue a certificate of sale and title. After another month, the trial court denied the lender’s amended motion and granted the third-party purchaser’s motion to confirm the sale. The lender appeals the order.

On appeal, the lender argues the trial court abused its discretion in denying its request to vacate the foreclosure sale because the sale price was grossly inadequate, the sale was not properly published, and the lender failed to attend the sale due to inadvertence or excusable error. No brief has been filed in opposition.

“The standard of review on appeal of a trial court’s ruling on a motion to set aside a foreclosure sale is whether the trial court grossly abused its discretion.” Arsali v. Chase Home Fin., LLC, 79 So.3d 845, 849 n. 5 (Fla. 4th DCA 2012). Under the general rule, inadequacy of price, standing alone:

is not a ground for setting aside a judicial sale. But where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.

Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611, 613 (Fla. 4th DCA 2008) (quoting Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966)).

In Long Beach, we held “that the trial court ... grossly abused its discretion in failing to set aside the foreclosure sale.” Id. at 614. There, the lender was the “innocent victim of the mistakes of its attorneys and agents.” Id. When the subject property sold for $1,000 — .02% of its value — the lender promptly moved to set aside the sale by filing its motion three days later. Id. We concluded, “[t]he purpose of the law in this area is to promote the viability of the foreclosure sale process, to encourage good faith offers for foreclosed properties, not to protect outrageous windfalls to buyers who make de minimis bids.” Id. at 614-15.

Here, the trial court entered a final judgment of foreclosure for the lender in the amount of $41,580.97; the property sold for $800, or 1.9% of the judgment. The lender filed a motion to vacate the sale eight days later. In its motion, the lender explained that a substitution of legal representation resulted in the lender’s failure to have an agent at the sale.

Just as in Long Beach, the gross inadequacy of the sale price, which resulted from a mistake by the lender, requires the trial court to vacate the sale. We therefore reverse the order denying the lender’s motion.

Reversed.

DAMOORGIAN and CONNER, JJ., concur.


author: PER CURIAM.

text:
    Angelica TREJO and Rikardo Alvarenga, Appellants, v. Stephen GOLEMBE, Appellee.
    No. 3D11-903.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.
    Kenneth J. Kavanaugh, for appellants.
    Klein Glasser Park Lowe & Pelstring and Alex Diaz, Miami, for appellee.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Steele v. Kehoe, 747 So.2d 931 (Fla.1999); see also Georganas-Kesselman v. Sheppard, No. 4:01cv98-RH, 2002 WL 34519639 (N.D.Fla. Mar.27, 2002).


text:
    James Lamar LIVINGSTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1987.
    District Court of Appeal of Florida, First District.
    May 2, 2012.

      James Lamar Livingston, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, RAY, and MAKAR, JJ., concur.


author: ORFINGER, C.J.

text:
    Alisha TUCKER, Appellant, v. Wayne LIEBKNECHT, Appellee.
    No. 5D11-681.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2012.
    Nicholas A. Shannin, of Page, Eichen-blatt, Bernbaum & Bennett, P.A., and Lauren M. Ilvento, of Law Office of Lauren M. Ilvento, P.A., Orlando, for Appellant.
    Elaine A. Barbour, Orlando, for Appel-lee.
   ORFINGER, C.J.

Alisha Tucker appeals from a temporary injunction prohibiting her from relocating her minor child from the residence they share, without the consent of the child’s father, Wayne Liebknecht, or a prior court order. This Court has jurisdiction. Fla. RApp. P. 9.130(a)(3)(B); see Chi. Title Ins. Agency of Lee Cnty., Inc. v. Chi. Title Ins. Co., 560 So.2d 296 (Fla. 2d DCA 1990) (reiterating that order granting injunction is appealable non-final order under rule 9.130(a)(3)(B)). We reverse.

Ms. Tucker and Mr. Liebknecht were never married but conceived a child together. After the child’s birth, the parties entered into a Mediated Paternity Agreement (“MPA”), which resolved various matters between them with respect to the minor child, including timesharing. In the MPA, Ms. Tucker was designated the “majority” timesharing parent. With regard to relocation, the parties agreed:

Relocation
If the parent that the child lives with the majority of the time intends to relocate more than 50 miles from the present home, the parent must obtain permission in writing from the non-residential parent or obtain a prior Court Order of Approval.

The court subsequently entered a final judgment, ratifying and incorporating the MPA.

Several years later, Mr. Liebknecht filed a verified emergency motion for injunction, claiming that Ms. Tucker was planning to move with the child to a new home more than fifty miles from her current residence without his consent, in violation of the final judgment. Without notice to Ms. Tucker, the trial court entered a temporary injunction, enjoining her from “relocating the minor child ... from her current residence ... until further order of this Court.” Subsequently, after notice to Ms. Tucker, a hearing was held on Mr. Liebknecht’s motion. Following the hearing, the trial court entered an order, extending the temporary injunction and holding, in relevant part:

B. This Court finds that driving distance measured in driving miles as opposed to radius miles is the standard to be utilized when determining distance for purposes of relocation.
C. The Mother’s anticipated address of relocation is in excess of the 50[-]mile restriction.
E. The Court shall extend the Temporary Injunction ... until further notice of this Court....

(Emphasis added). This appeal follows.

Ms. Tucker argues that we should dissolve the temporary injunction because the MPA permits her to relocate with the child anywhere within fifty miles of her existing residence without the consent of Mr. Lieb-knecht or the trial court. She contends that the trial court erroneously used the driving distance standard instead of the straight line standard to determine that her proposed new home was more than the permitted fifty-mile distance from her existing home. We agree.

We interpret the MPA like any other contract. Its terms should be given plain meaning unless found to be ambiguous. See Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997); see also Andersen Windows, Inc. v. Hoehberg, 997 So.2d 1212, 1214 (Fla. 3d DCA 2008) (reiterating that “courts ... are not authorized to rewrite clear and unambiguous contracts ... [a]nd where a contract is clear and unambiguous, it must be enforced as written”). In this case, there is no ambiguity. The MPA requires Ms. Tucker to obtain prior approval, either from Mr. Liebknecht or the trial court, if she plans to relocate with the child more than fifty miles from her current residence. What is in dispute is the method of calculating the distance. Specifically, whether it should be measured, as Ms. Tucker contends, in a straight line from point to point or, as Mr. Lieb-knecht contends, using available roadways between Ms. Tucker’s current and intended residences. We believe that utilizing a method of measurement other than the straight line method would create uncertainty and generate needless debate. See Trumbull Falls, LLC v. Planning & Zoning Comm’n of Town of Trumbull, 97 ConnApp. 17, 902 A.2d 706, 712 (2006).

In the absence of any statutory or contractual provision governing the manner of measurement of distances, the general rule is that distance should be measured along the shortest straight line, on a horizontal plane and not along the course of a highway or along the usual traveled way. 79 Am.Jur.2d Weights and Measures § 46 (2012). Florida has adopted this general rule. For example, in State v. Burch, 545 So.2d 279, 281 (Fla. 4th DCA 1989), in commenting on how to measure one thousand feet for the purpose of determining whether a drug transaction occurred within that distance of a school, the court said:

[W]e see no reason why the one thousand foot distance requirement should not reasonably be measured in a straight line to the school property’s nearest boundary line (ie., as the crow flies). To suggest that the distance should be calculated by some circuitous pedestrian route would be a tortuous reading of the statute that would violate its plain intent and meaning.

See also State ex rel. Fronton Exhibition Co. v. Stein, 144 Fla. 387, 198 So. 82. 85 (1940) (holding that in absence of any contrary statutory provision, distance of one thousand feet meant feet measured in straight line). Accord Commonwealth v. Spano, 414 Mass. 178, 605 N.E.2d 1241, 1244 (1998) (holding absent express statutory provision specifying method of determining extent of school safety zone, measurement should be in straight line); Palazzo ex rel. Delmage v. Corio, 204 F.R.D. 639 (E.D.N.Y.1998) (holding proper measure of distance between two points is “as the crow flies,” ie., a straight line measurement); Harris v. Univ. Hosps. of Cleveland, Nos. 76724, 76785 (Ohio Ct.App. Mar. 7, 2002) (holding when agreement did not specify method of computing distance, correct way to measure distance was “as the crow flies,” or straight-line approach, not actual driving distance).

We conclude that consistent with the general rule, in the absence of a statutory or contractual provision to the contrary, the simplest and most objective method to measure the distance between two points is the straight-line or “as the crow flies” measure. This uniform standard offers more certainty than a measure based on road miles, which may fluctuate as new and different routes are constructed. Sprow v. Hartford Ins. Co., 594 F.2d 412, 417 (5th Cir.1979). For these reasons, we conclude that the trial court erred in determining the distance between Ms. Tucker’s current home and her anticipated address of relocation. On remand, the court shall measure the distance using the straight-line method.

REVERSED and REMANDED.

MONACO and COHEN, JJ., concur.

      . We observe that the injunction prevents Ms. Tucker from moving even next door. This is clearly contrary to the provision of the MPA, which required consent only for relocations more than fifty miles from Ms. Tucker’s present home.

      . The record does not contain a transcript of the hearing or a statement of the facts as authorized by Florida Rule of Appellate Procedure 9.200. Therefore, the trial judge’s factual findings are presumed correct, see Powers v. Powers, 831 So.2d 724, 724 (Fla. 5th DCA 2002), and our review is limited to errors apparent on the face of the judgment. Mobley v. Mobley, 18 So.3d 724, 725 (Fla. 2d DCA 2009).


author: KHOUZAM, Judge.

text:
    William John MONTEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2811.
    District Court of Appeal of Florida, Second District.
    May 4, 2012.
    William John Montez, pro se.
   KHOUZAM, Judge.

William John Montez appeals from an order summarily denying his motion for postconvietion DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. Because the postconviction court’s order and attachments do not refute Mr. Mon-tez’s claim that he is entitled to further DNA testing of the murder weapon, we reverse and remand for further proceedings.

Mr. Montez was charged with the premeditated murder of his live-in girlfriend, Ms. Martinez, whose nearly nude body was found bruised and strangled near Nebraska Avenue in Tampa. A woman’s nylon stocking was tied around her neck. The medical examiner estimated that the time of death was about 3 a.m., and the State’s theory of prosecution was that Mr. Montez murdered her at their home and then dumped her body several miles away.

The State conducted DNA and blood analysis testing on several items, including a pillowcase from the victim’s bed and a couple of her fingernail clippings. Crime laboratory analysts from the Florida Department of Law Enforcement found blood on one of Ms. Martinez’s fingernails that was consistent with both her blood and that of Mr. Montez. On another fingernail from her other hand, they found her blood but not Mr. Montez’s. The pillow case revealed DNA from an unknown third person. Semen found in Ms. Martinez’s vagina came from Mr. Montez. The nylon stocking was not tested because it lacked a sufficient amount of the oils necessary to perform the tests.

Mr. Montez claimed that he is innocent of this crime. He based his rule 3.853 motion on the existence of newly available, much more sensitive “touch DNA” testing, alleging that if the nylon stocking is tested, it will reveal DNA of the person who tightened the stocking around Ms. Martinez’s neck. The DNA will allegedly match the murderer but not Mr. Montez. In addition, Mr. Montez alleged that the victim’s former boyfriend arranged to meet her on the night she was killed, and two witnesses testified at trial that on the night of the murder, Mr. Montez did not leave the mobile home park where he shared a trailer with Ms. Martinez. Mr. Montez also alleged that the victim worked as an escort and that she could have met a client who strangled her and left her body on the street.

The postconviction court ordered the State to respond to Mr. Montez’s facially sufficient motion. See Fla. R.Crim. P. 3.853(c)(2). In response, the State contended that the identity of the perpetrator was not a genuinely disputed issue at trial, pointing to the testimony of “eyewitnesses” — the same people whose testimony Mr. Montez claimed tends to exculpate him — as well as the blood serology and the DNA tests previously mentioned. In addition, the State pointed out that DNA matching neither the victim nor the defendant was found in the victim’s car and in her bedroom. Even in the face of evidence of DNA that matched neither Ms. Martinez nor Mr. Montez, the jury nevertheless convicted Mr. Montez of her murder. Thus, the State argued that any additional DNA testing would be merely cumulative.

In its order denying relief, the postcon-viction court essentially adopted the State’s response and concluded, based upon the testing that had been conducted as well as “other evidence introduced at trial,” that Mr. Montez had “failed to demonstrate a reasonable probability that the requested DNA testing would have lead [sic] to his acquittal or to the imposition of a lesser sentence.” The court attached excerpts from the transcripts of the trial testimony of the neighbors who had observed Mr. Montez at the trailer park on the night of the murder as well as of the testimony relating to the DNA and blood tests.

Rule 3.853(c)(3) provides that upon review of the State’s response, the postcon-viction court must either enter an order on the merits or set a hearing. When the court does enter an order on the motion, it must make the findings outlined in rule 3.853(c)(5):

(A) Whether it has been shown that physical evidence that may contain DNA still exists.
(B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.

In this case, however, the postconviction court failed entirely to address the questions set out in subparts (A) and (B) of the rule: whether the nylon stocking is still available for DNA testing and whether the results of any testing would be admissible at trial. Subpart (B) is of particular importance in this case because the defendant is relying upon the existence of newly developed testing procedures that he claims would prove his innocence. Neither the State’s response nor the postconviction court’s order addresses whether such testing of the nylon stocking is available or feasible.

Ultimately, though, the postconviction court concluded that the trial evidence was such that the defendant had not demonstrated that he would have been acquitted had this new DNA evidence been admitted at his trial. However, neither the court’s order nor its attachments refute Mr. Mon-tez’s claims that the nylon stocking would contain the DNA of the person who strangled Ms. Martinez and that Mr. Montez’s DNA would not be found on the stocking. These allegations in Mr. Montez’s sworn motion must be taken as true. And in this case involving largely circumstantial evidence, it is difficult to imagine that the existence of another person’s DNA on the murder weapon would not have created at least some reasonable doubt in the minds of the jurors about Mr. Montez’s guilt.

From the minimal documentation attached to the postconviction court’s order, we cannot conclude that this is a case in which the defendant is attempting to use DNA evidence to exonerate himself in the face of a record demonstrating overwhelming evidence of guilt. See, e.g., Consalvo v. State, 3 So.3d 1014, 1016 (Fla.2009) (citing Galloway v. State, 802 So.2d 1173 (Fla. 1st DCA 2001)). For example, this case is unlike Gore v. State, 32 So.3d 614 (Fla. 2010), another largely circumstantial evidence case, in which the court reviewed the evidence connecting the defendant to the murder when rejecting his claim for postconviction DNA testing. According to the supreme court’s opinion, Gore was the last person seen with the victim, he was spotted in Florida in the victim’s car twenty-four hours after her death, he received a traffic ticket while driving the victim’s car, he had someone pawn the victim’s jewelry, and he admitted to a witness that a purse in the victim’s car belonged to a girl he had killed “last night or a few nights ago.” Id. at 620. If evidence of similar weight was used to convict Mr. Montez, it is not apparent from the post-conviction court’s order and attachments. Therefore, we hold — based on the allegations in the motion and the documents in the summary record — that the postconviction court has not refuted Mr. Montez’s claim that there is a reasonable probability that he would have been acquitted if the touch DNA evidence had been admitted at trial.

Accordingly, we reverse the order denying Mr. Montez’s rule 3.853 motion for postconviction DNA testing, and we remand for the postconviction court to conduct an evidentiary hearing on the motion.

Reversed and remanded.

WHATLEY and LaROSE, JJ., Concur.

      . As noted above, for purposes of this appeal, we must accept as true Mr. Montez’s claim that the killer would have left traces of his DNA on the stocking that was used to strangle the victim.


author: KELLY, Judge.

text:
    Zofia Zak RHODES and Rudy Rhodes, Appellants, v. NEWPORT BUILDING AND CONSTRUCTION, INC., Appellee.
    No. 2D10-3006.
    District Court of Appeal of Florida, Second District.
    May 4, 2012.

      Stuart Jay Levine and Heather A. De-Grave of Walters Levine Klingensmith & Thomison, P.A., Tampa, for Appellants.
    James S. Myers and Suzanne Nebesky of McRae & Metcalf, P.A., Tampa, for Appellee.
   KELLY, Judge.

Zofia and Rudy Rhodes (the Rhodes) appeal from the final judgment foreclosing a construction lien on their property and awarding Newport Building and Construction, Inc. (Newport) attorney’s fees. We reverse the order foreclosing the lien and dismiss the appeal to the extent that it challenges entitlement to fees.

The Rhodes hired Newport to build a waterfront home. When the home was nearing completion, the Rhodes were unsatisfied with the quality of the construction and withheld the final payment of $23,983.01 until the defects in the workmanship could be resolved. Newport filed a claim of lien for the balance due on the contract and then filed a complaint seeking to enforce and foreclose the construction lien. The Rhodes filed a counterclaim alleging that Newport had breached its contract by failing to complete the contract according to the plans and specifications. The parties stipulated that the Rhodes were entitled to a credit of $2586 for unfinished labor and, therefore the unpaid balance of the contract due and owing was $21,397.01.

The parties submitted their dispute to arbitration and, following a hearing, an arbitrator found that Newport had breached the contract and that the Rhodes were entitled to set off $18,000 in damages from the amount owed on the contract, leaving a balance of $3397.01 due to Newport. The Rhodes paid Newport the arbitration award in full. Nonetheless, Newport filed a motion to enforce and convert the arbitration decision to a judgment and to foreclose the lien. Newport also sought an award of attorney’s fees. The trial court granted the motion and entered a final judgment of foreclosure. We reverse.

Once the Rhodes paid the arbitration award, it was unnecessary to enforce the lien. Cf Beach Resorts Int’l, Inc. v. Clarmac Marine Constr. Co., 339 So.2d 689, 692 (Fla. 2d DCA 1976) (holding that because the defendant submitted payment of the arbitration award to the plaintiff “no enforcement was needed and the application of a mechanic’s lien was unnecessary”). “Payment of the arbitration award and acceptance of the same constituted settlement of the real controversy between the parties.” Id. Accordingly, Newport was not entitled to a judgment of foreclosure.

In the final judgment, the court also found that Newport was the prevailing party and was entitled to an award of attorney’s fees and costs but reserved jurisdiction as to the amount. Because the order determines that Newport is entitled to fees but does not determine the amount, it is a nonfinal order not yet ripe for appellate review. See Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 165 (Fla. 5th DCA 2010) (“[A]n attorney’s fee award is not appealable until both the issues of entitlement and amount are ruled upon.”). Accordingly, we dismiss the portion of the appeal regarding the trial court’s ruling on attorney’s fees.

Reversed in part; dismissed in part.

WALLACE and KHOUZAM, JJ., Concur.


author: MORRIS, Judge.

text:
    Dwayne KING, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4524.
    District Court of Appeal of Florida, Second District.
    May 4, 2012.
   MORRIS, Judge.

Dwayne King appeals the summary denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Because we agree that King is entitled to additional jail credit, we reverse and remand.

King was first arrested pursuant to the charges in case number 04-009120 on May 13, 2004. He was released on bond sixteen days later on May 28, 2004. He was later taken back into custody, and his bond was revoked for a separate offense in case number 03-021911 on October 31, 2005. King remained in jail awaiting trial until July 27, 2006. On that date, after being convicted by a jury of two offenses in case number 04-009120 for which the court imposed consecutive five-year sentences, the trial court also sentenced King on five pending cases in which he pleaded guilty in his best interest. For all of those cases, which included case number 03-021911, Bang received sentences of one year and one day, all to run concurrently with each other and with the sentences imposed in case number 04-009120.

King filed the present rule 3.800(a) motion seeking 269 days of jail credit in case number 04-009120 for the time he spent in Hillsborough County jail from October 31, 2005, through his sentencing on July 27, 2006. The postconviction court summarily denied King’s motion on the ground that a defendant “is only entitled to credit against each sentence for the time spent in jail for the charge which led to that sentence.” Keene v. State, 500 So.2d 592, 594 (Fla. 2d DCA 1986). Because King’s bond was revoked only in case number 03-021911, the postconviction court concluded that King was not entitled to additional credit.

However, in his rule 3.800(a) motion, King pointed to specific portions of the record indicating that the sentencing judge orally awarded him credit for the time he spent in jail from October 2005 until the sentencing hearing in all cases— including case number 04-009120. At sentencing, the judge and the defense attorney engaged in a somewhat extensive discussion of jail credit. The defense attorney recognized that the bond in case number 03-021911 was specifically revoked as to that case only; however, his client remained in jail from the time that bond was revoked on October 31, 2005, through the date of sentencing. After a discussion with a clerk, the judge concluded: “Fine. Just give him credit from October 31st.” Later, the judge repeated that he should “get full credit on all these from October 31st, '05.” However, the written sentence in case number 04-009120 reflects only seventeen days of jail credit: sixteen days for the time spent before being released on bond and one day for the day of sentencing. The discrepancy between the oral pronouncement and written sentence is a valid basis for an illegal sentence claim under rule 3.800(a). Williams v. State, 957 So.2d 600, 605 (Fla.2007). When the written sentence and oral pronouncement conflict, the oral pronouncement controls. State v. Akins, 69 So.3d 261, 269 (Fla.2011).

The postconviction court is correct that King was not entitled to the additional credit in case number 04-009120 because his bond was only revoked as to case number 03-021911 in October 2005. Nevertheless, the sentencing court had the discretion to award the credit on all concurrent sentences, including case number 04-009120, and the transcript clearly indicates that intent. Failure to correct the sentence now to include the award of credit would be tantamount to rescinding previously awarded jail credit. “[T]his court has repeatedly held that a trial court may not rescind jail credit previously awarded even if the initial award was improper.” Lebron v. State, 870 So.2d 165, 165 (Fla. 2d DCA 2004). To do so would constitute an illegal enhancement of King’s sentence. See Linton v. State, 702 So.2d 236, 236 (Fla. 2d DCA 1997).

Accordingly, we reverse the denial of King’s motion for jail credit and remand for the postconviction court to amend King’s sentence in case number 04-009120 to reflect his entitlement to the additional 269 days’ jail credit.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.


text:
    Cedric ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-311.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Cedric Alexander, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    Richard DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0435.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Richard Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

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


text:
    Joseph PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0607.
    District Court of Appeal of Florida, First District.
    May 4, 2012.

      Joseph Patterson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., CLARK, and MAKAR, JJ., concur.


author: WETHERELL, J.

text:
    Henry SPENCER, Jr., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D11-4872.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Gloria R. Walker of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    Michael Palecki, General Counsel, and Melissa Ellen Dinwoodie, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant, Henry Spencer, appeals the final order of the Agency for Persons with Disabilities (APD) assigning him to Tier Three of the home and community-based services Medicaid waiver program for persons with developmental disabilities (hereafter “the DD Waiver Program”). Finding no error in this assignment, we affirm the final order.

Spencer is a developmentally disabled adult with a primary diagnosis of mental retardation. He resides in a group home and receives services under the DD Waiver Program pursuant to a cost plan approved by APD. The services reflected on his 2010-11 cost plan, which is the most recent plan in the record, are standard residential habilitation at the minimal level ($27,443.52), adult day training at a 1.6 to one ratio ($6,681.60), transportation ($8,788.80), waiver support coordination ($1,571.40), and adult dental services ($500). The total cost of these services is $44,985.32.

In April 2010, APD notified Spencer that he was being assigned to Tier Three of the DD Waiver Program, which at the time, had a $35,000 annual expenditure limit. Spencer timely requested a hearing to challenge his assignment to Tier Three and, in his petition, he argued that he should be assigned to Tier One, which at the time had no expenditure limit, so he could continue receiving all of the services on his cost plan. The case did not go to hearing until March 2011.

The evidence presented at the hearing established that Spencer did not have exceptional behavioral problems or intense medical needs. Indeed, the statutorily-mandated assessment tool used by APD to evaluate Spencer’s needs indicated that he had moderate adaptive needs and low medical needs. There was testimony that it would be detrimental to Spencer if he lost his group home placement or if his adult day training was completely eliminated; however, there was also testimony that, even with the expenditure limit in Tier Three, Spencer would be able to stay in his group home and attend adult day training twice a week.

The hearing officer found in her recommended order that Spencer did not meet the criteria for assignment to Tier One because he did not have any exceptional behavioral problems and because his medical and adaptive needs could be met in Tier Three. Significantly, the hearing officer did not find that Spencer had intensive medical and adaptive needs. APD adopted the hearing officer’s recommended order in its final order, and this timely appeal followed.

Spencer contends that APD’s determination that his needs can be met in Tier Three is based on an erroneous interpretation of Florida Administrative Code Rule 65G-4.0027(4). This court considered a similar argument in Newsome v. Agency for Persons with Disabilities, 76 So.3d 972 (Fla. 1st DCA 2011).

In Newsome, APD determined that the appellant’s needs could be met in Tier Three because the expenditure limit for that tier was sufficient to cover the costs of the Personal Care Assistance and Waiver Support Coordination services reflected on the appellant’s cost plan. Id. at 974. In making this determination, APD did not consider the costs of any of the other services on the appellant’s cost plan because none of those services were listed in rule 65G-4.0027(4). Id. This court reversed, holding that APD erred in considering only the services listed in rule 65G-4.0027(4) when making a tier assignment because “[t]he rule states that the listed services are to be used as the ‘primary basis’ for the tier assignment; it does not state that the listed services are the only services to be considered.” Id. at 975.

Newsome is not controlling here because, unlike Newsome where the parties stipulated and the hearing officer found that the appellant had “intense medical needs,” the hearing officer in this case did not find that Spencer had intensive medical or adaptive needs and the record establishes that Spencer’s medical and adaptive needs are low to moderate. Thus, Spencer does not meet the threshold requirement for Tier One, which is “limited to clients who have service needs ... for intensive medical or adaptive needs and that are essential for avoiding institutionalization ....” § 393.0661(3)(a), Fla. Stat. (2010); see also Fla. Admin. Code R. 65G-4.0027(l)(a) (explaining that Tier One is limited to clients whose “needs for medical or adaptive services are intense ... and are essential for avoiding institutionalization”). Because Spencer does not meet the threshold eligibility requirement for Tier One, it is not necessary to consider, as it was in Newsome, whether APD correctly determined that his needs can be met in a lower tier.

We recognize, as did the hearing officer, that the expenditure limit that comes with the assignment to Tier Three will require Spencer to reduce or eliminate services on his cost plan. This result, while unfortunate, is a function of the policy choice made by the Legislature in creating the tier system to balance the delivery of services under the DD Waiver Program to eligible individuals with the availability of appropriated funds. It is not the role of this court to second-guess this policy choice.

Accordingly, for the reasons stated above, we affirm the final order assigning Spencer to Tier Three of the DD Waiver Program.

AFFIRMED.

ROBERTS and ROWE, JJ., concur.

      . The expenditure limit was subsequently reduced to $34,125. See § 393.0661(3)(c), Fla. Stat. (2011).

      . The length of time between the petition and the hearing was attributable, at least in part, to the fact that the case was initially referred to the Division of Administrative Hearings and then transferred to a hearing officer with the Department of Children and Families (DCF) after section 393.125(1), Florida Statutes, was amended to require hearings in cases such as this to be conducted by DCF hearing officers pursuant to section 409.285, Florida Statutes. See ch.2010-157, Laws of Fla., at § 3 (effective July 1, 2010).

      .Spencer also contends that the determination is not supported by competent substantial evidence. We reject this argument without further comment.

      . The rationale for the tier system was explained in the hearing officer's recommended order, as follows: "Although tier caps frequently result in the need for individual Waiver recipients to reduce or eliminate previously authorized services, such cost[] reductions allow APD to provide services to other clients, while maintaining the Agency’s overall appropriations.”


text:
    Florence FRANKS, Former Wife, Appellant, v. Eugene N. FRANKS, Jr., Former Husband, Appellee.
    No. 1D11-2219.
    District Court of Appeal of Florida, First District.
    May 4, 2012.

      Lester Makofka, Jacksonville, for Appellant.
    Corrine A. Bylund, Jacksonville, for Ap-pellee.
   PER CURIAM.

Florence Franks (“Former Wife”) appeals, and Eugene N. Franks, Jr. (“Former Husband”), cross-appeals, a final judgment dissolving their 14-year marriage, awarding the Former Wife bridge-the-gap alimony and a portion of the Former Husband’s military retired pay, distributing the marital assets and debts, and enjoining the Former Wife from contacting the Former Husband’s employer. The Former Wife challenges the judgment asserting that: (1) the trial court lacked subject matter jurisdiction; (2) the court erred in failing to award her permanent periodic alimony; (3) the court failed to address her request for attorney’s fees; (4) the court abused its discretion in entering the injunction against her; and (5) the court abused its discretion in denying her motion for continuance. The Former Husband raises three issues on cross-appeal: (1) the trial court failed to make findings justifying the unequal distribution of marital assets; (2) the court incorrectly exceeded the two-year statutory limit on bridge-the-gap alimony; and (3) the court abused its discretion in ordering the Former Husband to elect a survivor benefit plan naming the Former Wife as sole beneficiary.

We affirm the issues raised by the Former Wife on appeal. Sufficient evidence in the record supports the trial court’s finding that the Former Wife was a resident of the State of Florida for six months before the petition for dissolution was filed. See § 61.021, Fla. Stat. (2010). In addition, although the Former Wife requested attorney’s fees in her counter-petition, she did nothing further, e.g., ask the court to reserve jurisdiction on the matter, to raise the issue of attorney’s fees before the court entered final judgment. We conclude, therefore, that the trial court did not err in failing to consider the request. Cf. Flores v. Flores, 82 So.3d 838 (Fla. 4th DCA 2011) (reversing and remanding final judgment for trial court’s failure to rule on, or reserve jurisdiction to rule on, former wife’s request for attorney’s fees where former wife included request for fees in response to dissolution petition and in written closing arguments after final hearing). Finally, the court’s rulings on the continuance, injunction,* and permanent alimony reflect no abuse of discretion.

Turning to the Former Husband’s issues on cross-appeal, we find no facial deficiency in the final judgment regarding distribution of marital assets, but we note that the trial court failed to consider or act on the Former Husband’s motion for clarification about the transfer of certain assets included in the distribution scheme. We further disagree that the court abused its discretion in directing that the Former Wife be named beneficiary of a military survivor benefit plan to protect her award of a portion of thé Former Husband’s Navy retired pay. The Former Husband argues that the court could not order him to maintain such an annuity for the Former Wife’s benefit because he had not elected to participate in a survivor plan. However, “[cjontrary to appellant’s assertion, trial courts have the discretion to order a spouse to maintain an annuity for a former spouse under the Survivor Benefit Plan.” Haydu v. Haydu, 591 So.2d 655, 657 n. 2 (Fla. 1st DCA 1991) (citing Heldmyer v. Heldmyer, 555 So.2d 1324 (Fla. 5th DCA 1990)); see also 10 U.S.C. §§ 1448(b)(2)(A), (b)(5) (providing that persons entitled to military retirement pay can elect to provide former spouse an annuity under Survivor Benefit Plan, and that upon making such election, plan participant shall disclose whether election is made pursuant to court order, or pursuant to written agreement incorporated in or approved by court order).

We agree, however, that the bridge-the-gap alimony the trial court awarded to the Former Wife exceeds the period permitted by statute for such alimony. The court ordered the Former Husband to pay the Former Wife $3,200 per month “for a period of thirty-six month[s] ... as bridge-the-gap alimony.” Section 61.08(5), Florida Statutes (2010), provides that this type of alimony is permissible to help a party to transition from being married to being single, and is designed to assist with legitimate identifiable short-term needs. The statute further provides that the length of such an award may not exceed two years. It is apparent that the trial court intended this alimony award to assist the Former Wife until the Former Husband begins receiving military retired pay. Notably, section 61.08(7), Florida Statutes (2010), permits a trial court to award “durational alimony ... to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration.” Although the Former Wife urges this court to deem the award durational alimony, we believe the better course is to remand for the trial court to clarify the nature of the alimony awarded.

For the foregoing reasons, we reverse the Final Judgment of Dissolution of Marriage and remand to the trial court to clarify the nature of the alimony awarded and to consider and rule on the Former Husband’s pending motion seeking clarification on the asset distribution scheme.

REVERSED and REMANDED with directions.

BENTON, C.J., MARSTILLER, and MAKAR, JJ., concur.

       The Former Wife asserts that the injunction prevents her from contacting the Former Husband’s employer for legitimate reasons pertaining to the final judgment. She may seek modification from the trial court. The final judgment reserves jurisdiction "for the purpose of enforcement and/or modification for any provision" therein.


text:
    Robert J. NORDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6754.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Robert J. Norder, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Robert J. Norder, seeks review of the trial court’s Order Denying Motion for Additional Jail Credit. As the State conceded in its response to our show cause order issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the trial court’s record attachments do not show whether: (1) Appellant was arrested in Collier and Lee Counties based on the violation of probation warrants or if Hamilton County issued a detainer for Appellant; and (2) if a detainer was issued, whether Appellant was held solely on the Hamilton County detainer in Collier and Lee Counties or if he was arrested and held on other charges as well. If Appellant was arrested in Collier and Lee Counties based upon the violation of probation warrants, he would be entitled to additional jail credit. See Trout v. State, 927 So.2d 1052, 1054 (Fla. 4th DCA 2006) (noting that a defendant is entitled to jail credit for time spent in a county jail when he has been arrested pursuant to a warrant from another county). Appellant would also be entitled to additional jail credit if he was held in Collier and Lee Counties solely on a Hamilton County detainer. See Gethers v. State, 838 So.2d 504, 507 (Fla.2003) (explaining that a prisoner is not in custody pursuant to a detainer unless the prisoner is subject to release and is being held because a detainer has been lodged against him or her); Ransone v. State, 20 So.3d 445, 449 (Fla. 4th DCA 2009) (explaining that Gethers held that a defendant is not entitled to jail credit when authorities merely place a hold or detainer against him or her unless the hold or detainer is the sole basis for the defendant’s incarceration).

Accordingly, we REVERSE the trial court’s order and REMAND with instructions to either attach portions of the record that conclusively refute Appellant’s claim or hold an evidentiary hearing.

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    James Patrick BONIFAY, n/k/a, NabiyI Taqqi Ya’Qub Musaaleh, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0451.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    NabiyI Musaaleh, f/k/a, James P. Boni-fay, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and James Patrick Bonifay, n/k/a, NabiyI Taqqi Ya’Qub Musaaleh, is hereby afforded a belated appeal of the resentencing order in Escam-bia County case number 1991-CF-000606. See State v. Trowell, 739 So.2d 77 (Fla. 1999); see also King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001). 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. See Fla. R.App. P. 9.141(c)(6)(D).

The trial court is directed to appoint counsel for appellant in the resulting appeal if he qualifies for such an appointment.

PETITION GRANTED.

DAVIS, WETHERELL, and ROWE, JJ., concur.


author: PALMER, J.

text:
    Daryl MINGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3234.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Daryl Mingo appeals his conviction and sentence entered on a charge of tampering with evidence, section 918.13, Florida Statutes (2010). We find no trial error and, accordingly, affirm. However, we remand for correction of a scrivener’s error, which incorrectly states that Mingo entered a plea of nolo contendere to the charge when, in fact, the matter was tried before a jury.

AFFIRMED and REMANDED.

ORFINGER, C.J., and EVANDER, J„ concur.


text:
    A.J., Mother of T.J., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-4041.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2012.
    Lawrence P. Cartelli, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tavares, for Appellant.
    Rosemarie Farrell, Orlando, for Appel-lee.
   ON CONCESSION OF ERROR

PER CURIAM.

Based on Appellee’s concession of error, this matter is summarily reversed pursuant to Florida Rule of Appellate Procedure 9.135(b) and remanded to the trial court to hold a new disposition hearing and for further proceedings.

REVERSED and REMANDED.

SAWAYA, PALMER and LAWSON, JJ., concur.