author: PADOVANO, J. RAY, J.,

text:
    Anthony BUSH, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3203.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2011.
    Rehearing Denied Nov. 14, 2011.

      Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Respondent.
   PADOVANO, J.

Anthony Bush, the defendant in a pending criminal case, petitions this court for a writ of habeas corpus to review an order entered under the pretrial detention statute, section 907.041, Florida Statutes (2011). We conclude that the detention order was unlawful. The court had previously admitted the defendant to bail and the state did not have good cause to seek a modification of the earlier order. Because the defendant’s detention is illegal he is entitled to relief by habeas corpus. We grant the petition and quash the detention order.

The defendant was arrested on April 10, 2011, in connection with the robbery of a jewelry store in Tallahassee. He appeared in court the next day before a county court judge for a first appearance hearing on charges of armed robbery, grand theft of property valued in excess of $100,000, and use of a firearm in the commission of a felony. The county judge reviewed the probable cause affidavit and then offered the state and the defense an opportunity to address the matter of bail.

Defense counsel acknowledged the seriousness of the charges but argued that the court should set reasonable conditions of release, given the fact that the defendant was a full-time college student at a local university. He disclosed to the court that the defendant had a juvenile court record but pointed out that he had no prior adult criminal record.

The prosecutor representing the state at the first appearance hearing agreed to an order setting bail in the amounts established by the local bail schedule. According to the schedule, the presumptive amounts would be $25,000.00 for the armed robbery charge, $25,000.00 for the grand theft charge, and $10,000.00 for the firearm charge. During the hearing, the prosecutor represented to the judge that “the state would be satisfied with the bond schedule,” along with some form of monitoring community restraint, perhaps an ankle monitor.

The county judge decided to admit the defendant to bail and informed all present that this decision was based in part on the state’s recommendation. The following dialogue took place between the court and the defendant on this point:

THE COURT: I think you need to understand something right now, Mr. Bush. This is a life felony. I wasn’t going to set a bond. I’ll go ahead and follow the State’s recommendation. Let me promise you, if you slip up at all, you’re going to be held without bond; these charges are so serious.
THE DEFENDANT: Thank you, Your Honor.

With that admonition, the judge set bail for the three offenses in the total amount of $60,000.00, according to the bail schedule.

Later that same day, another prosecutor filed a motion before another judge, this time a circuit judge, for an order holding the defendant without bail under the provisions of the pretrial detention statute. Defense counsel objected to the motion on the ground that there was no lawful reason to modify the bail order entered at the first appearance hearing.

The hearing on the state’s motion began with a question by the circuit court judge regarding the effect of the prior bail order. In response to this inquiry, the prosecutor stated that the motion for pretrial detention was not the equivalent of a motion to reconsider or modify bond, as the defense had suggested, but rather that it was a remedy the state was entitled to pursue. As the prosecutor explained, “I’m not asking for a do-over first appearance; I’m moving under a whole different vehicle.”

Despite this statement, the prosecutor then offered the following candid explanation for the state’s earlier agreement to release the defendant on bail:

My understanding of the first appearance, Your Honor is, quite candidly, is the assigned Assistant State Attorney ... agreed to a bond. She had recently found out some traumatic news to her professionally, and was not focusing on the ball. I could tell you more specifics about that. But she came to my office later in the day, and realized that she had agreed to a bond that was — on a case that she didn’t realize was PBL [a first degree felony punishable by life], on a situation that the State would normally be asking for a no-bond.

To clarify this point, the prosecutor explained that he had filed the motion for pretrial detention because he “recognized the fact that [he] did not have grounds” to seek reconsideration of the order entered at the first appearance hearing.

The circuit judge overruled the defense objection and proceeded to the merits of the motion for pretrial detention. A law enforcement officer testified that a latent fingerprint taken from the counter in the jewelry store belonged to an alleged accomplice, Avery Davis, and that when the officers confronted Davis with the fingerprint, he confessed to the crime and implicated the defendant, Bush. A video surveillance tape in another jewelry store in the same shopping mall depicted the defendant and Avery Davis walking together, and the appearance of the two men in the video was consistent with the descriptions given by the victims of the robbery. Finally, the officer testified that a clerk at a jewelry exchange in Pembroke Pines, Florida, had identified the defendant, Bush, from a photo lineup as a person who had twenty diamond rings in his possession and who had, in fact, pawned some of the rings at the exchange.

Based on the evidence presented at the hearing, the circuit judge held that the state had established all of the legal requirements for pretrial detention. He concluded that the state had not waived its right to seek pretrial detention by agreeing to bail at the first appearance hearing. Alternatively, the judge found that the evidence regarding the photo lineup identification by the clerk in Pembroke Pines was significant new evidence that would justify reconsideration of the earlier bail decision. The judge granted the state’s motion and ordered that the defendant be held in custody without bail.

We begin our review of the order by noting that habeas corpus is the proper remedy to challenge the legality of a detention or restraint under which a person is being held. See Seccia v. Wainwright, 487 So.2d 1156 (Fla. 1st DCA 1986); Suarez Ortega v. Pujals de Suarez, 465 So.2d 607 (Fla. 3d DCA 1985). The remedy is often employed in criminal cases to seek review of trial court orders pertaining to bail and pretrial release. Among other kinds of orders within this general class, an order detaining a defendant under the pretrial detention statute is reviewable by habeas corpus. See Schwartz v. Neumann, 731 So.2d 746 (Fla. 4th DCA 1999).

To properly address the issues presented by the petition in this case we must consider the provisions of two rules. Rule 3.131(d)(2) of the Florida Rules of Criminal Procedure provides that the state may seek modification of bail or the conditions of release set by an order entered at the first appearance hearing only by showing that there is good cause for the modification. To satisfy the “good cause” requirement in this rule, the prosecution must present evidence of a change in circumstances or information not made known to the first appearance judge. See Sikes v. McMillian, 564 So.2d 1206 (Fla. 1st DCA 1990); Keane v. Cochran, 614 So.2d 1186 (Fla. 4th DCA 1993); Michael E. Allen, Florida Criminal Procedure § 9:7 (2011) (discussing the rule and case law on this point). Evidence that was available to the state at the time of the first appearance hearing does not qualify as new information and therefore does not justify a subsequent denial of bail or a subsequent increase in the amount of bail.

Rule 3.132(a) authorizes the state to file a motion for pretrial detention at or before the first appearance hearing. However, the grounds for detaining an individual might not be known or fully developed at that time. Subdivision (b) of the rule accounts for this possibility by providing that the state may file a motion for pretrial detention “at any time prior to trial.”

The defendant contends that the pretrial detention order is invalid under rule 3.131(d)(2), because the circumstances had not changed since the time of the original bail order, and the state did not present any evidence at the pretrial detention hearing that it could not have presented earlier. In response, the state maintains that it may file a motion for pretrial detention at any time, even if the circumstances have not changed since the entry of a prior order admitting the defendant to bail.

The case law in Florida supports the position advocated by the defendant. For example, in Goelz v. Bradshaw, 906 So.2d 1234 (Fla. 4th DCA 2005), the appellate court quashed a pretrial detention order on the ground that there was no new evidence or change of circumstance to justify a modification of the bail order originally entered at the first appearance hearing. The court explained:

[A] revocation of bond requires a change in circumstances or information that was not disclosed to the court when the bond was originally set. Nevadomski v. Jenne, 756 So.2d 117 (Fla. 4th DCA 2000); Santos v. Garrison, 691 So.2d 1172 (Fla. 4th DCA 1997); Keane v. Cochran, 614 So.2d 1186 (Fla. 4th DCA 1993). The State has the burden of proving that there is a change in circumstances or new information that warrants the increase or revocation of bond. Lee v. Bieluch, 855 So.2d 713 (Fla. 4th DCA 2003).

Goelz, 906 So.2d at 1235.

Likewise, in Homerding v. Jenne, 804 So.2d 349 (Fla. 4th DCA 2001), the appellate court granted a petition for writ of habeas corpus and directed the trial court to reinstate an earlier bail order. The court reasoned that the pretrial detention order was invalid because there was no evidence that the circumstances had changed after the initial order setting bail.

The state contends that we should reject these authorities because they fail to give full effect to the statement in rule 3.132(b) that “a motion for pretrial detention may be filed at any time prior to trial.” Specifically, the state argues that this rule should not be read in pan materia with other rules, because the statement regarding the time for filing the motion is not ambiguous. We agree that rule 3.132(b) is not ambiguous and that we therefore have no occasion to construe it in light of rule 3.131(d), but the issue presented here is not an issue of interpretation, it is an issue of application.

The fallacy in the state’s argument is that it assumes that rules 3.131(d) and 3.132(b) are always mutually exclusive. That is not the case. In a procedural setting like this one in which a pretrial detention motion was filed after bail had been set by agreement of the parties, the court must apply the requirements of both rules. The state cannot rely on favorable language in one rule to work around the requirements of the other. Because the motion for pretrial detention in this case was filed after the court had entered an order setting bail, it must meet the “good cause” requirement of rule 3.131(d) as well as the substantive requirements for pretrial detention as set forth in rule 3.132. To put this another way, a motion for pretrial detention filed after the entry of an order setting bail is also a motion to modify bail.

The statement in rule 3.132(b) that a motion for pretrial detention may be filed at any time before trial merely signifies that the defendant’s release status is open for consideration at all times during the course of the pretrial proceedings. Nothing in the language of the rule suggests that a motion for pretrial detention may be used as a vehicle to nullify an earlier bail order or to retract an unwise agreement on the matter of bail. To the contrary, the statement at issue deals only with the time for filing the motion. If the state elects to file a motion for pretrial detention after bail has been set by order of the court, the motion must also meet the requirements for modifying the existing order.

The state argues that the petition for writ of habeas corpus should be denied in any event because the circuit judge had good cause to modify the conditions set earlier by the county judge. This position is at odds with the representations the state made in the trial court. The prosecutor conceded from the start of the hearing that there was no new information that would justify a modification of the earlier order setting bail. Instead, he relied entirely on his view that good cause was not necessary.

Moreover, a comparison of the probable cause affidavit reviewed by the county court judge and the testimony presented to the circuit court judge reveals that the evidence before the two courts was substantially the same. The evidence presented to the circuit court judge pertained exclusively to the strength of the state’s case. Although this evidence was more detailed than the recitation in the probable cause affidavit, it was not new. The only part of the evidence that was even arguably new was the officer’s testimony that a witness at the jewelry exchange in Pembroke Pines was able to identify the defendant as a person who was attempting to pawn some diamond rings. But this adds very little to the evidence before the county judge. During the search of the defendant’s residence, law enforcement officers found a receipt showing that the defendant had pawned jewelry at the same jewelry exchange in Pembroke Pines. This information was contained in the probable cause affidavit.

In summary, we conclude that there was no legal justification to modify the original order setting bail and that the subsequent order detaining the defendant without bail under the pretrial detention statute is therefore invalid. For these reasons, we grant the petition for writ of habeas corpus and quash the pretrial detention order. The effect of our decision will be to reinstate the original order admitting the defendant to bail.

Petition granted.

DAVIS, J., concurs.

RAY, J., dissents.

RAY, J.,

dissenting.

I would deny the petition for two reasons. First, the “good cause” requirement of Rule 3.131(d)(2), relating to modification of bail, is not applicable to motions filed under Rule 3.132, relating to pretrial detention. Second, even if the “good cause” limitation did apply, the State presented information from which the trial court could determine that this requirement had been met.

The State’s motion for pretrial detention was authorized under Rule 3.132(b), titled “Motions filed after First Appearance.” The rule explicitly states that “[a] motion for pretrial detention may be filed at any time prior to trial” and that a hearing on the motion is required “[o]n receipt of a facially sufficient motion and a determination of probable cause ... that an offense eligible for pretrial detention has been committed.” Fla. R. Crim. P. 3.182(b)-(c) (emphasis added). The State is not required to establish “good cause,” i.e., the existence of circumstances or information not known to the first appearance judge, in order to trigger the trial court’s mandatory review of its motion. See Fla. R. Crim. P. 3.132(c). Rather, the State’s burden is to show “beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in section 907.041, Florida Statutes.” Fla. R. Crim. P. 3.132(c)(1).

The comprehensive statutory scheme of section 907.041, Florida Statutes (2010), circumscribes the trial court’s authority to order pretrial detention. In relevant part, it provides that a court may order pretrial detention if it finds a substantial probability that “[t]he defendant poses the threat of harm to the community.” § 907.041(4)(c)5. As the statute explains, the court may reach this conclusion if it makes the following findings:

that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.

Id. Notably, there is no restriction on or qualification of the court’s ability to make these findings based on the fact that the defendant has previously been released on bail. See id. Thus, requiring the State to establish “good cause” to seek pretrial detention after bail has been set would inject into the statute and rule language not expressed by the Legislature or the Florida Supreme Court, contrary to well-established rules of statutory construction. See L.G. v. State, 939 So.2d 1141, 1142-43 (Fla. 1st DCA 2006) (noting that where the Legislature has used a term in one part of the statute but omitted it from another part, the court “will not imply it where it has been excluded”) (quoting Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995)).

Nevertheless, Petitioner urges this Court to impose the “good cause” requirement of Rule 3.131 on the State’s Rule 3.132 motion by reading the two rules in pari materia. The primary vehicle for determining legislative intent is “the plain text of the relevant statute,” or in this case, rule. See E.A.R. v. State, 4 So.3d 614, 629 (Fla.2009) (emphasis added). If that text is unambiguous, the court’s inquiry should end. Id. Although there is an exception to this rule in cases where other provisions in pari materia with the relevant provision reveal an inconsistency, id., the two rules at issue in the instant case are not inconsistent with each other because they operate under different circumstances. See Castro v. State, 914 So.2d 467, 469-70 (Fla. 5th DCA 2005) (declining to “stir the two rules together” and impose a restriction on the trial court’s determination of the amount of bond simply because that restriction appears in the rule governing pretrial detention). For this reason, I agree that we should reject Petitioner’s invitation to construe the two rules in pari materia.

For the same reason, I would decline to interpret Rule 3.131(d)(2) as applicable to a Rule 3.132 motion, even after the defendant has been granted pretrial release. It is true that a pretrial detention order necessarily revokes any previously ordered conditions of release. However, revocation of bail is qualitatively different from modification of bail. Cf. Hannah v. State, 814 So.2d 1129, 1130-31 (Fla. 5th DCA 2002) (treating revocation of probation as a distinct inquiry from modification of conditions of probation). As defined by Rule 3.131(b)(1), bail means “any of the forms of release” listed in subdivision (b)(1) of that rule. Thus, when the court modifies bail under Rule 3.131(d), it is changing the form of release, not revoking release. This qualitative difference explains why the Florida Supreme Court adopted two distinct rules, each with its own standards, procedures, and safeguards, to address the two separate matters of pretrial release and pretrial detention. Because the State sought pretrial detention rather than modification of the conditions of release, we have no occasion to apply the requirements of Rule 3.131; doing so is the functional equivalent of construing the two rules in pari materia.

Even if the “good cause” limitation of Rule 3.131 is read into Rule 3.132,1 would affirm the trial court’s determination that such cause existed in the instant case. At the pretrial detention hearing, the State provided the court with evidence that was not presented to the first appearance judge. See Keane v. Cochran, 614 So.2d 1186, 1187-88 (Fla. 4th DCA 1993) (“In order to have good cause to modify a bond, the state must present evidence of a change in circumstances or information not made known to the first appearance judge.”). Although much of this evidence was available to the State at first appearance and referenced in the probable cause affidavit, the jewelry exchange witness’ positive identification of Petitioner did not become available to the State until after that time. The court expressly found this evidence to be “significant new information” which strengthened the ease against Petitioner and provided further support for the court’s finding that Petitioner poses a threat of harm to the community. While the degree to which this new evidence changed the circumstances is debatable, I would not second-guess the trial court’s determination of its weight. See Hernandez v. State, 56 So.3d 752, 758 (Fla.2010) (“When reviewing the sufficiency of evidence presented to a trier of fact, our task is not to ... reweigh the evidence.”).

For the foregoing reasons, I respectfully dissent.

      . Section 907.041, Florida Statutes sets the substantive requirements for pretrial detention in noncapital cases. However, the Legislature has expressly deferred to the courts as to the procedural requirements for pretrial detention. See § 907.041(2), Fla. Stat. (2011) (stating that the "[pjrocedures for pretrial release determinations shall be governed by rules adopted by the Supreme Court”).

      . Although it is proper to consider the strength or weakness of the evidence against the defendant in setting bail, that is only one of many factors that have a bearing on the decision. Section 903.046, Florida Statutes (2011) contains a comprehensive list of the factors a judge should consider when admitting a defendant to bail or setting the amount of bail. See also Fla. R. Crim. P. 3.131(b)(3).

      . Even though the first appearance judge’s comments suggest that he would have been inclined to order pretrial detention, he was precluded from doing so because the State had not filed a motion for this protective measure at that time. See Fla. R. Crim. P. 3.132(a). After filing the motion for pretrial detention, the State provided the court with much greater evidentiary detail about the risk the defendant poses to the community. Cf. Goelz v. Bradshaw, 906 So.2d 1234, 1236 (Fla. 4th DCA 2005) (Farmer, J., dissenting) (recognizing the significance of the fact that the judge who revoked pretrial release had the opportunity to consider a threatening letter in its entirety, while the first appearance judge had been presented with excerpts only).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shiree BONNER, Appellant, v. Aaron J. BONNER, Appellee.
    No. 1D11-4220.
    District Court of Appeal of Florida, First District.
    Sept. 30, 2011.
    Rehearing Denied Nov. 14, 2011.

      Carolyn R. Jones, Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. Ward v. Bragg, 957 So.2d 670, 671 (Fla. 1st DCA 2007); Mobley v. McNeil, 989 So.2d 1215, 1216 (Fla. 1st DCA 2008).

THOMAS, WETHERELL, and SWANSON, JJ., concur.


author: WOLF, J.

text:
    Joseph HOLMES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5790.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Rehearing Denied Nov. 8, 2011.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   WOLF, J.

We affirm appellant’s conviction and sentence. We note, however, after all the briefs were filed, appellant moved to file a supplemental brief. Appellant asserted that, at the time the initial brief was filed, appellant’s counsel was unaware of a constitutional challenge to the drug possession statute raised in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 2011 WL 3236040 (M.D.Fla. July 27, 2011). This court previously addressed the very same issue raised in Shelton in Williams v. State, 45 So.3d 14 (Fla. 1st DCA 2010), and upheld the drug possession statute as constitutional. Accordingly, we deny the request to provide supplemental briefing on the matter.

AFFIRMED.

DAVIS and MARSTILLER, JJ., concur.

       We note this decision will not necessarily be binding on whether to grant leave to file supplemental briefs based on the Shelton decision in appeals filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: WETHERELL, J.

text:
    Isaac C. FLAGG, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2372.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2011.
    Rehearing Denied Nov. 9, 2011.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant, Isaac Flagg, appeals his conviction and sentence for possession of crack cocaine and drug paraphernalia. He contends 1) that the trial court erred in denying his dispositive motion to suppress, and 2) that the statute under which he was convicted is facially unconstitutional. We reject both claims and write only to address Flagg’s constitutional challenge to section 893.13, Florida Statutes. We affirm the trial court’s denial of the motion to suppress without further comment.

On October 11, 2010, at 1:14 a.m., Flagg was stopped in a high drug crime area by a Gainesville police officer for riding a bicycle without a light. Flagg acted aggressively towards the officer after he was stopped. The officer then asked Flagg to open his hand because he appeared to be concealing something and the officer was concerned that it might be a weapon. When Flagg opened his hand, the officer saw what turned out to be two pieces of crack cocaine fall to the ground. Flagg was arrested, and during a search incident to arrest, a crack pipe was discovered in Flagg’s pocket.

Flagg was charged with possession of a controlled substance in violation of section 893.13(6)(a), a third-degree felony, and possession of drug paraphernalia in violation of section 893.147(l)(b), a first-degree misdemeanor Flagg filed a motion to suppress the drugs and crack pipe on the basis that the stop was illegal. The trial court denied the motion, and Flagg thereafter pled no contest to the charges, reserving the right to appeal the denial of his dispositive motion to suppress. The trial court accepted the plea and sentenced Flagg to 24.975 months in prison for the possession offense and to time served for the paraphernalia offense. This timely appeal follows.

In addition to challenging the denial of the motion to suppress, Flagg argues for the first time on appeal that section 893.13(6)(a) is unconstitutional because the mens rea requirement in the statute was eliminated by section 893.101, which provides in pertinent part that:

The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

§ 893.101(2), Fla. Stat. This, according to Flagg, converted his drug possession offense into a strict liability crime that violates due process because of the felony punishment provided for the offense.

This exact same argument has been rejected many times by this court and the other district courts of appeal. See, e.g., Williams v. State, 45 So.3d 14, 16 (Fla. 1st DCA 2010) (citing cases), rev. denied, 53 So.3d 1022 (Fla.2011); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA 2010), rev. denied, 51 So.3d 465 (Fla.2010); Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005), rev. denied, 915 So.2d 1198 (Fla.2005). Flagg acknowledges this contrary authority, but contends that we should recede from our prior decisions and adopt the reasoning of Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 2011 WL 3236040 (M.D.Fla. 2011), which held section 893.13 facially unconstitutional based on the same argument presented here.

Shelton is not binding on this court or any other state court, and we see no reason to recede from our settled precedent simply because one federal judge has a different view of the law than this court. Moreover, we do not find the analysis in Shelton persuasive because, among other reasons, the decision misperceives the operation of the affirmative defense in section 893.101. The statute does not, as Shelton implied, require the defendant to establish his innocence by proving a lack of knowledge, see Wright, 920 So.2d at 25 (explaining that section 893.101 “does not require the defendant to prove or disprove knowledge”); rather, the statute provides that if the defense is raised, the state has the burden to overcome the defense by proving beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs. Id.; see also Fla. Std. Jury Instr. (Crim.) 25.7 (explaining that the jury should find the defendant not guilty if they “have reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance”). Furthermore, because lack of knowledge is not a defense to a true strict liability crime, the availability of the affirmative defense in section 893.101 undermines the essential premise in Shelton that the offenses in section 893.13 are strict liability crimes that may not be constitutionally punished as felonies.

We recognize that the Second District recently certified the constitutional issue raised in this case to the Florida Supreme Court for immediate resolution pursuant to Florida Rule of Appellate Procedure 9.125. See State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011). Although we agree that the uncertainty caused by Shelton is affecting the administration of justice around the state and that an expeditious decision from the supreme court addressing the constitutionality of section 893.13 is needed, we do not see any reason not to reaffirm our view that the statute is constitutional. Indeed, we believe that a definitive statement from this court reaffirming the constitutionality of section 893.13 notwithstanding Shelton will promote the consistent administration of justice by resolving the issue for the trial courts, thereby allowing drug prosecutions to proceed, at least until the supreme court or another district court weighs in on the issue. Of course, defendants remain free to raise the constitutional argument to preserve the issue for appellate or federal review, but this decision will at least preserve the status quo until the supreme court addresses the issue, and it should also address the Second District’s legitimate concern in Adkins that, without a definitive ruling from a higher court, different circuits (or even different judges in the same circuit) may continue to take opposite positions on the issue. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (recognizing that “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts”).

In sum, for the reasons stated above, we reject Flagg’s claim that section 893.13 is facially unconstitutional and affirm his conviction and sentence.

AFFIRMED.

SWANSON, J., concurs; MARSTILLER, J., concurs in result only.

      . A facial challenge to the constitutionality of the statute under which a defendant is convicted may be raised for the first time on appeal. See State v. Johnson, 616 So.2d 1, 3 (Fla. 1993).

      . See State v. Dwyer, 332 So.2d 333, 335 (Fla.1976) ("Even though lower federal court rulings may be in some instances persuasive, such rulings are not binding on state courts.”).

      . See, e.g., Feliciano v. State, 937 So.2d 818 (Fla. 1st DCA 2006) (noting that statutory rape is a strict liability crime to which a defendant’s lack of knowledge of the victim’s age is not a defense).


text:
    Victoria J. FAJARDO, Appellant, v. US BANK NATIONAL ASSOCIATION., etc., Appellee.
    No. 5D10-2626.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2011.
    Victoria J. Fajardo, Marina Del Rey, CA, pro se.
    Barbara A. Couture, of Shapiro, Fish-man & Gaché, LLP, Tampa, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

SAWAYA, MONACO and JACOBUS, JJ., concur.


author: KELLY, Judge.

text:
    Monica Lee FOTINOS, Appellant, v. Emmanuel N. FOTINOS, Appellee.
    No. 2D10-2628.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2011.
    Sema Yildirim, Tampa, for Appellant.
    Steve Bartlett of Law Office of Steve Bartlett, P.A., Holiday, for Appellee.
   KELLY, Judge.

The former wife, Monica Lee Fotinos, appeals from a final judgment of dissolution of marriage arguing that the trial court erred in making an unequal and inequitable distribution of marital assets to her former husband, Emmanuel N. Foti-nos, without providing specific findings of fact to support the award. We affirm the dissolution of the parties’ marriage but reverse the equitable distribution portion of the final judgment.

In its final judgment, the trial court found, in pertinent part, that the parties’ marital assets totaled $131,868.07. The court equally divided these assets and awarded the former wife $65,934.03, payable by the former husband in installments of $300 per month until paid in full. The court also found that the former husband failed to overcome the presumption that a residence, purchased by him during the marriage, was a marital asset. However, despite this finding, the court awarded exclusive use and possession of the home to the former husband.

Section 61.075(1), Florida Statutes (2009), provides that the distribution of marital assets must be equal unless there is justification in the record supporting the court’s disparate treatment. The final distribution of marital assets, whether equal or unequal, must be supported by factual findings based on substantial, competent evidence. Prest v. Tracy, 749 So.2d 538, 539 (Fla. 2d DCA 2000). Section 61.075(3) states in part that the final judgment must contain specific written findings of fact as to identification of nonmarital and marital assets, valuation of significant marital assets, designation of which spouse shall be entitled to each asset, and other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities. Failure to include the statutorily required findings of fact makes appellate review of the distribution scheme impossible and requires reversal. Prest, 749 So.2d at 539.

The final judgment in this case does not comply with the statute. Although the judgment properly characterizes the home acquired during the marriage as a marital asset, it essentially awards the former wife’s interest in the residence to the former husband without any valid legal justification and without providing any valuation of this asset. Likewise, neither the record nor the final judgment reveals the court’s rationale in allowing the former husband to pay the former wife’s portion of the distribution award over time. We recognize that under section 61.075(10), a trial court has discretion to order an equitable distribution award payable in installments over a fixed period of time. See Beers v. Beers, 724 So.2d 109, 114 (Fla. 5th DCA 1998). However, under the scenario fashioned by the trial court, it would take over eighteen years for the former wife to receive her share of the award, effectively depriving the former wife of her one-half interest in the marital assets.

Accordingly, we reverse that portion of the final judgment distributing the parties’ marital assets. On remand, consistent with this opinion, the trial court shall make specific findings that support the equitable distribution scheme. See Santiago v. Santiago, 51 So.3d 637, 639 (Fla. 2d DCA 2011).

Reversed and remanded.

CRENSHAW and MORRIS, JJ„ Concur.


text:
    Douglas HOULE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1173.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.

      Douglas Houle, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of all but one of the appellant’s claims. We reverse and remand the denial of the appellant’s claim that counsel was ineffective for failing to move for a competency evaluation.

In ground one, the appellant asserts that counsel was ineffective for failing to move to have his competency evaluated. He alleges that counsel was aware of the appellant’s long history of mental illness, including the fact that he had been institutionalized multiple times, had attempted to commit suicide, was diagnosed as bi-polar, alcoholic and depressive, and had a long history of being on (and was currently on) psychotropic medications. He alleges that if counsel had moved for a competency evaluation, he would have been found to be incompetent. He also alleges that he was incompetent during trial and was therefore unable to assist counsel. We conclude that the appellant’s allegations are facially sufficient, see Williams v. State, 46 So.3d 118 (Fla. 1st DCA 2010); Jackson v. State, 29 So.3d 1161 (Fla. 1st DCA 2010), and not conclusively refuted by the record excerpts attached to the order by the trial court. Accordingly, we remand to the trial court to either attach the portions of the record that conclusively refute ground one or to hold an evidentiary hearing on that claim.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

WETHERELL, MARSTILLER, and SWANSON, JJ„ concur.


text:
    Chadwin A. STANLEY, JR., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1838.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Chadwin A. Stanley, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the May 18, 2009, judgment and sentence in Escambia County Circuit Court case number 2008-CF-004097. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

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


text:
    Frederick L. THOMAS, Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE and Tykisha Nicole Small, Respondent.
    No. 1D11-3502.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Frederick L. Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner files a petition for writ of mandamus seeking to compel the circuit court to rule on petitioner’s request for a paternity test. Petitioner misunderstands the duty of the trial court in matters such as this. In an ordinary civil action, the trial court is under no obligation to rule on a complaint, motion or request on its own initiative. Instead, it is the litigant’s obligation to take such actions as are necessary to prosecute the case to final disposition, and, in the course of that, to file such motions as may be necessary and bring those motions to the trial court’s attention for a ruling. Absent a showing that an express and distinct demand for performance of this sort has been made, mandamus will not lie. See Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001).

Accordingly, the petition for writ of mandamus is denied on the merits.

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


text:
    Robert Byron MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3334.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Sonya Rudenstine, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one and two without further comment. However, for the reasons discussed below, we reverse and remand the denial of ground three for the trial court to attach records conclusively refuting the claim or to hold an evidentiary hearing.

Following a jury trial, the appellant was convicted of trafficking in more than 28 but less than 200 grams of methamphetamine (count one), manufacture of methamphetamine (count two), possession of methamphetamine with intent to sell (count three), possession of listed chemicals with intent to manufacture methamphetamine (count four) and conspiracy to manufacture methamphetamine (count five). In ground three, the appellant asserts that counsel was ineffective for failing to move for dismissal of count three because dual convictions for trafficking in methamphetamine and possession of methamphetamine with intent to sell violate double jeopardy principles. The trial court denied the claim because it found that counsel had raised the issue below. However, counsel only objected on double jeopardy grounds to the convictions for counts one and two. He did not object to the convictions for counts one and three.

The supreme court has held that convictions for both trafficking in cocaine and possession of cocaine with intent to sell based on the same quantum of cocaine violate double jeopardy. Johnson v. State, 712 So.2d 380 (Fla.1998). Thus, if the appellant’s convictions for trafficking in methamphetamine and possession of methamphetamine with intent to sell arise from the possession of the same quantum of methamphetamine the convictions would violate double jeopardy. Id.; see also Gibbs v. State, 698 So.2d 1206, 1209-1210 (Fla.1997) (noting that defendant could not be convicted of trafficking possession and possession of same quantum of drug, although defendant could be convicted of trafficking sale and simple possession); Melton v. State, 73 So.3d 296 (Fla. 1st DCA 2011) (“We do however, agree that Appellant could not be convicted o[f] [sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver methamphetamine in violation of section 893.13] and [trafficking in methamphetamine in violation of section 893.135] when the underlying conduct, i.e., possession, was the same for both offenses.”). If so, the appellant’s claim of ineffective assistance of counsel could have merit. Cf. Brown v. State, 958 So.2d 1125 (Fla. 2d DCA 2007) (reversing summary denial of claim that counsel was ineffective for failing to object to convictions for two counts of robbery involving only one victim and one episode, where record did not conclusively refute the claim).

Accordingly we AFFIRM the denial of grounds one and two, but REVERSE and REMAND ground three for the trial court to attach record portions conclusively demonstrating the appellant is not entitled to relief or to hold an evidentiary hearing.

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    Clarence ALLEN, Petitioner, v. City of Jacksonville Honorable Jim FULLER Clerk, Respondent.
    No. 1D11-4054.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Clarence Allen, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner files a petition for writ of mandamus seeking to compel the circuit court to respond to a notice of lis pendens that petitioner served on the clerk of court in December 2005. Petitioner misunderstands the duty of the trial court in matters such as this. In an ordinary civil action, the trial court is under no obligation to rule on a complaint, motion or request on its own initiative. Instead, it is the litigant’s obligation to take such actions as are necessary to prosecute the case to final disposition, and, in the course of that, to file such motions as may be necessary and bring those motions to the trial court’s attention for a ruling. Absent a showing that an express and distinct demand for performance of this sort has been made, mandamus will not lie. See Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA2001).

Accordingly, the petition for writ of mandamus is denied on the merits.

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


text:
    Gregory Marvin CARTER, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D10-4230.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    Gregory Marvin Carter, pro se, Appellant.
    Mark Graham Hanson, Department of Health, for Appellee.
   PER CURIAM.

Appellant challenges a final order from the Board of Nursing, claiming the Board erred in permanently revoking his nursing license and improperly imposed a fine upon him that exceeds the maximum disciplinary guidelines enumerated in Florida Administrative Code rule 64B9-8.006. We agree in part, finding the fine to be improper pursuant to the guidelines set forth in Florida Administrative Code rule 64B9-8.006, paragraphs (3)(h) and (3)(11).

Accordingly, we AFFIRM the Board’s decision to permanently revoke Appellant’s nursing license, REVERSE its imposition of the improper fine and REMAND for proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

HAWKES, MARSTILLER, and RAY, JJ., concur.


text:
    John A. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4248.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    John A. Simmons, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. This dismissal is without prejudice to the appellant’s right to seek any other relief to which he may be entitled. Brigham v. State, 769 So.2d 1100, 1101 (Fla. 1st DCA 2000); Barnishin v. State, 795 So.2d 1104 (Fla. 1st DCA 2001).

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


author: NORTHCUTT, Judge. ALTENBERND, Judge,

text:
    Charles Randall JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3392.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2011.

      Joseph C. Bodiford of Bodiford Law, P.A., Special Assistant Public Defender, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Just before he was tried on criminal charges, Charles Jones unequivocally informed the court that he did not want to be represented by his appointed attorney. The court denied Jones’s request to discharge his counsel without inquiring into his reasons. This was a structural defect in Jones’s trial, and we must reverse his convictions and remand for a new trial.

Jones was charged with fleeing at high speed to elude, a second-degree felony in violation of section 316.1935(3)(a), Florida Statutes (2007), and obstruction without violence, a misdemeanor in violation of section 843.02, Florida Statutes (2007). On the morning of his trial, prior to voir dire, Jones told the court: “I’m ready to fire my attorney. I don’t want him to represent me.... I don’t want this guy right here to represent me.” The court responded with assurances that Jones’s appointed counsel was “a fíne attorney” and had “done everything possible that he can to represent your interest, so he’s going to represent you.” Jones reiterated: “I don’t want [defense counsel] to represent me.” The court ignored the request, and instead, it announced that the case was to be tried “right now” and directed the bailiff to bring in the venire for jury selection.

After the prospective jurors were questioned but before the jury was selected, Jones’s attorney informed the court that Jones wanted to discharge him and obtain another lawyer. On the court’s inquiry, someone in the gallery mentioned the name of a private defense attorney. Jones then addressed the court directly, stating that he did not want to be represented by the Public Defender’s Office. But the mentioned attorney was not present. Without further inquiry, the court denied Jones’s request to dismiss his appointed attorney. The jury was then selected, sworn, and released for the day.

Trial resumed the following day before a different judge. The previously named defense attorney was in attendance, and he asked to represent Jones. He also sought a continuance in which to prepare. But, as the jury had already been sworn, the prosecutor expressed concern about the risk of double jeopardy. The court denied the motion for continuance, finding that it was “interposed solely for the purpose of delay.” However, recognizing the defendant’s right to counsel of his choosing, the court granted a brief recess to permit the private attorney to decide whether he wanted to immediately take over the defense.

After the recess, Jones was not to be found. His appointed counsel advised that he could not locate Jones. He also informed the court that, just that morning, Jones’s family had expressed concerns about Jones’s competency and had pointed out his bizarre behavior. No evidence was taken on this point, and the trial proceeded in Jones’s absence with appointed counsel representing him. Jones was convicted as charged and sentenced, as a habitual offender, to twenty years in prison for fleeing and to time served for obstruction.

Jones’s case implicates important rights constitutionally guaranteed to all criminal defendants. The Sixth Amendment to the United States Constitution contains an explicit right to the assistance of counsel for the defense in a criminal prosecution. Criminal defendants do not have the right to appointed counsel of their choice. Hardwick v. State, 521 So.2d 1071, 1074 (Fla.1988). But “ ‘the right to counsel is the right to the effective assistance of counsel.’ ” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). The Supreme Court has also recognized that the Sixth Amendment contains an implicit right to self-representation. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.”). Sixth Amendment rights “are part of the ‘due process of law that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States.” Id. at 818, 95 S.Ct. 2525 (footnote omitted).

The Florida Supreme Court has recognized that the right to counsel might be impaired by the incompetence of a court-appointed attorney. Hardwick, 521 So.2d at 1074. To minimize this possibility, the court adopted a procedure, first developed in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), for inquiring into a defendant’s request to dismiss an appointed attorney. Hardwick, 521 So.2d at 1074-75. The issue may arise when a defendant complains about his appointed attorney, or it may come up when a defendant asks to dismiss his appointed counsel, as occurred here. In either case, the court must conduct a preliminary inquiry into the reasons for the defendant’s dissatisfaction. Nash v. State, 53 So.3d 1208, 1211 (Fla. 2d DCA 2011) (citing Nelson); see also Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004) (“The first step in the procedure is the preliminary Nelson inquiry in which the court ascertains whether the defendant unequivocally requests court-appointed counsel’s discharge and the court asks the reason for the request.”). If the defendant claims that the attorney is not rendering effective assistance, the court should inquire of both the defendant and the attorney and then make a finding on the record whether the defendant has a reasonable basis for the claim. Nash, 53 So.3d at 1211. If the defendant’s complaint lacks substance, a full inquiry is not warranted. Penn v. State, 51 So.3d 622, 623 (Fla. 2d DCA 2011) (“[General allegations of dissatisfaction by a defendant are not enough to trigger the need for a full Nelson hearing.”).

Thus, depending on the defendant’s answers to the court’s questions, further inquiry may or may not be required. If, after the court’s initial inquiry or upon further questioning, the court determines that the defendant’s complaints have no merit, the court must ascertain whether the defendant persists in his desire to dismiss appointed counsel. And if so, the court must then inform the defendant that he can discharge the appointed attorney but that a substitute will not be appointed and the defendant would be exercising the right to self-representation. Maxwell, 892 So.2d at 1102; Jones v. State, 658 So.2d 122, 125 (Fla. 2d DCA 1995). When a defendant, so advised, continues with the request to discharge appointed counsel, the court must inquire and determine whether the defendant is making a knowing, intelligent, and voluntary waiver of the constitutional right to the assistance of counsel. Jones, 658 So.2d at 125 (citing Faretta).

In this case, the court simply never asked why Jones wished to dismiss his attorney. We appreciate that such a request might try judicial patience when, as here, it is made on the morning of trial while citizens called for jury duty are waiting to be questioned. See Jones, 658 So.2d at 126 (recognizing the burden of Nelson and Faretta inquiries and the understandable frustration, but reversing where inadequate inquiries were made). A defendant may not invoke even these important constitutional rights in bad faith or to delay proceedings. See Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525 (noting trial judge’s authority to terminate self-representation when defendant “deliberately engages in serious and obstructionist misconduct”); Foster v. State, 704 So.2d 169 (Fla. 4th DCA 1997) (explaining that Sixth Amendment rights cannot be used in bad faith or to delay or subvert proceedings).

That being said, in this case the court should have made a preliminary inquiry when Jones repeatedly expressed his wish to discharge his appointed attorney before the start of jury selection. In the absence of such an inquiry, the record contains no basis for assessing whether Jones had a reasonable claim that appointed counsel was not rendering effective assistance. In the absence of an inquiry, the record contains no indication of whether Jones would have exercised his constitutional right to self-representation rather than proceeding to trial with appointed counsel who was not acceptable to him. Of course, we know that Jones was absent from his trial; we do not know whether his absence was voluntary, whether it was caused by the mental health issues suggested by his family, or even whether it resulted from the trial court’s unwillingness to dismiss the appointed attorney that Jones found objectionable. See Faretta, 422 U.S. at 834, 95 S.Ct. 2525 (“To force a lawyer on a defendant can only lead him to believe that the law contrives against him.”); see also Jones, 658 So.2d at 124 n. 1 (noting that “[ajppellant, obviously upset at the trial court’s rulings, voluntarily absented himself’ from portions of the trial).

We find no fault in the trial court’s denial of a continuance, given the court’s finding and the fact that the jury had been sworn. But the later events do not cure the earlier failure to inquire into Jones’s reason for seeking to dismiss his appointed counsel. “The preliminary inquiry is the crucial step in the procedure that determines what other procedures, if any, a court must follow in order to adequately protect a defendant’s constitutional rights.” Maxwell, 892 So.2d at 1102. This was a structural error in the trial and requires that we reverse. See id. at 1103; Nash, 53 So.3d at 1211 (Altenbernd, J., concurring).

Reversed and remanded for new trial.

MORRIS, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully agree with the discussion of the law in the court’s opinion and conclude that I am obligated to concur in the outcome. The outcome, however, seems unfortunate for two reasons.

First, as the court’s opinion discloses, Mr. Jones engaged in a self-help solution to his disagreement about the adequacy of his attorney; he left in mid-trial. He did not attend his sentencing hearing more than a month later. The trial court docket indicates that he was not arrested on the bench warrant until August 2008. It seems highly unlikely that he authorized his lawyer to file this appeal in July. Although a defendant who absents himself from his trial does not forfeit the right to appeal if he returns for sentencing, see Griffis v. State, 759 So.2d 668 (Fla.2000), a failure to return until after the notice of appeal is filed can justify dismissal of the appeal. Vasquez v. State, 832 So.2d 901 (Fla. 3d DCA 2002). The State, however, never requested that relief in this case, and in light of Mr. Jones’s mental status, the State’s patience with Mr. Jones may be warranted.

Second, although the trial court did not conduct a proper Nelson/Faretta hearing and this error is structural, it seems obvious from this record that Mr. Jones was unlikely to have the mental competence to make the decision to self-represent under Faretta. Even if he were competent to make that decision, under the rationale of Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), which was decided after this trial, the trial court probably could declare that he suffered from a severe mental illness that authorized the court to override his decision. See also Fla. R.Crim. P. 3.111(d)(3) (eff. Aug. 27, 2009). In this regard, I would note that our record contains a supplement with the records from a mental examination in September 2008, after Mr. Jones was arrested on the bench warrant in this case. At that time, Mr. Jones was declared incompetent to proceed to trial because he would not even have been able to understand the proceeding or assist his appointed counsel. The condition was so severe that he was involuntarily committed to the custody of the Department of Children and Families.

Thus, this ease stands for the proposition that even when a trial judge believes the outcome of a Nelson/Faretta hearing is obvious, it must have the patience to take the procedural steps required under the rules of procedure and case law.

      . According to a supplemental record filed in this case, Jones was apprehended within a few months after trial and was found incompetent to proceed in another case.

      . This right is also expressly guaranteed by article I, section 16(a), of the Florida Constitution.

      . To the extent that Hardwick suggested the right to self-representation was conditioned on the defendant's legal abilities, the supreme court eliminated this concern in State v. Bowen, 698 So.2d 248 (Fla.1997), and it amended Florida Rule of Criminal Procedure 3.111(d)(3) to remove any assessment of a defendant’s legal skills. See McKenzie v. State, 29 So.3d 272, 281 (Fla.2010).

      .This right is explicit in article I, section 16(a), of the Florida Constitution.


author: NORTHCUTT, Judge.

text:
    Donald H. LABOMBARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5812.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2011.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Daniel Labombard pleaded guilty to a charge of failure to register as a sexual offender. After he was sentenced, he filed two motions pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), alleging sentencing errors. The circuit court entered an order denying the first motion. The second motion was deemed denied when the circuit court failed to act on it.

On appeal, the State correctly concedes that the second motion raised a sentencing scoresheet error that warrants reversal. Thirty additional points were added to La-bombard’s scoresheet pursuant to Florida Rule of Criminal Procedure 3.704(d)(12), which imposes the additional points when a defendant “has a primary offense or any additional offense ranked in level 8, 9, or 10 and one or more prior serious felonies.” Labombard’s only offense at sentencing was ranked as level seven. Therefore, rule 3.704(d)(12) was inapplicable, and La-bombard must be resentenced under a new scoresheet with these points deleted.

Labombard also challenged the fact that he was sentenced by a judge other than the one who accepted his plea. We have recently held that a defendant must object to the successor judge at the sentencing hearing, and we have receded from our previous cases holding that this error may be raised for the first time in a rule 3.800(b)(2) motion. Pifer v. State, 59 So.3d 225 (Fla. 2d DCA 2011). Labombard did not object at sentencing, and as such he is not entitled to appellate relief on this ground. But because we are remanding for resentencing, Labombard will have another opportunity to assert his right to be sentenced by the judge who accepted his plea.

Sentence reversed and remanded.

DAVIS and CRENSHAW, JJ„ Concur.


text:
    Fred WILDER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5637.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2011.
    Fred Wilder, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(d)(5).

HAWKES, MARSTILLER, and RAY, JJ., concur.


text:
    Efrain SOLACHE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5500.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2011.
    Efrain Solache, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004); see also Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

HAWKES, MARSTILLER, and RAY, JJ., concur.


text:
    Keith SHARPE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5218.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2011.
    Keith Sharpe, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(d)(5).

HAWKES, MARSTILLER, and RAY, JJ., concur.


text:
    Timothy EMIGH, Appellant, v. MALLEN CONSTRUCTION, INC., a Florida Corporation, Appellee.
    No. 1D11-4404.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2011.

      Daniel J. Glary, Jacksonville, for Appellant.
    Lamar D. Oxford, Orlando, for Appellee.
   PER CURIAM.

DISMISSED. Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995).

WOLF, LEWIS, and WETHERELL, JJ., concur.


text:
    Jerimy P. SMITH, Petitioner, v. STATE of Florida, Clay County, Respondent.
    No. 1D11-3800.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2011.
    Jerimy P. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Chapman v. State, 910 So.2d 940 (Fla. 5th DCA 2005).

HAWKES, MARSTILLER, and RAY, JJ., concur.


author: KHOUZAM, Judge.

text:
    Jerry PHARISIEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-959.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2011.

      James Marion Moorman, Public Defender, and James T. Miller, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Jerry Pharisien appeals his convictions and sentences for second-degree murder with a firearm and attempted second-degree murder with a firearm. We write to address his argument that the jury instruction given on manslaughter by act was fundamentally erroneous because it indicated that a conviction for manslaughter required proof that he intended to kill the victim. As we conclude that the manslaughter instruction that was given in Pharisien’s case was not error, we affirm and certify conflict with the First District. We note that this court recently reached the same result in Daniels v. State, 72 So.3d 227 (Fla.2011), which addressed the same issue. Pharisien also argues that the circuit court erred by denying his motion for judgment of acquittal. We affirm as to this issue without comment.

On July 13, 2007, there was a shooting at a night club that left one man dead and another injured. Pharisien was charged with second-degree murder with a firearm and attempted second-degree murder with a firearm. At trial, Pharisien’s attorney requested that the court not instruct the jury as to any lesser included offenses because there was no testimony to support convictions on the lesser included offenses. The trial court agreed not to provide the lesser included offense of aggravated battery on the attempted second-degree murder charge. However, the court decided to provide the jury with the manslaughter by act instruction on the second-degree murder charge as follows:

The lesser crime indicated in the definition of Second-Degree Murder is Manslaughter. To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
[The victim] is dead and, two, Jerry Pharisien intentionally caused the death of [the victim].
In order to convince that [sic] Manslaughter by an intentional act, it is not necessary for the State to prove that the Defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

Pharisien’s attorney did not object to this instruction. The jury found Pharisien guilty as charged.

In State v. Montgomery, 39 So.3d 252 (Fla.2010), the Florida Supreme Court held that the then-standard jury instruction on manslaughter by act constituted fundamental error because it required proof of intent to kill. That instruction read as follows:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
2. a. (Defendant) intentionally caused the death of (victim).
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

Id. at 256 (quoting Fla. Std. Jury Instr. (Crim.) 7.7 (2006)).

The instruction given in Pharisien’s case is different than the instruction given in Montgomery because it includes language that further explains the intent element of manslaughter. As the Montgomery court noted, the standard instruction was amended in 2008 to clarify that the required intent for a manslaughter conviction is intent to commit an act that caused the death of the victim as opposed to an intent to kill: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” Id. at 257 (quoting In re Std. Jury Instrs. in Crim. Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008)).

The First District held in Riesel v. State that this amended instruction did not eliminate the intent-to-kill requirement. 48 So.3d 885, 886 (Fla. 1st DCA 2010). Accordingly, the First District concluded that the amended instruction was fundamentally erroneous for the same reason as the instruction addressed in Montgomery. Id. Relying on Riesel, the First District has reached the same conclusion in several additional cases. See, e.g., Noack v. State, 61 So.3d 1208, 1208 (Fla. 1st DCA 2011); Pryor v. State, 48 So.3d 159, 161-62 (Fla. 1st DCA 2010); Williams v. State, 50 So.3d 1207, 1208 (Fla. 1st DCA 2010).

The Third District, on the other hand, held in Moore v. State that the amended instruction was not fundamentally erroneous because it sufficiently clarified the intent element. 57 So.3d 240, 244 (Fla. 3d DCA 2011). We agree. It is true that the amended instruction first provides that the jury must find that the defendant “intentionally caused the death of’ the victim. As addressed in Montgomery, this phrase is problematic because it suggests that the defendant must have intended to kill the victim. But the amended instruction clarifies that it is only necessary for the jury to find “an intent to commit an act which caused death.” Because the amended instruction given in Pharisien’s case included this clarifying language, we conclude that no error occurred. Accordingly, we affirm. We also certify conflict with the First District’s holding in Riesel and its progeny.

Affirmed; conflict certified.

DAVIS and CRENSHAW, JJ., Concur.

      . We note that the Third District also based its determination that no fundamental error had occurred on the fact that the instruction for manslaughter by culpable negligence was given along with the instruction for manslaughter by act. Moore, 57 So.3d at 245; see also Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010). The instruction for manslaughter by culpable negligence was not given in Pharisien’s case, so we cannot base our holding on the combined effect of the two instructions. But the Moore court’s heavy reliance on the manslaughter-by-culpable-negligence instruction does not detract from its holding that the amended manslaughter-by-act instruction was not erroneous.


author: BLACK, Judge.

text:
    Joseph Lee McCLOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2792.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2011.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Joseph McClough challenges his sentence for robbery with a firearm, arguing that it violated the negotiated sentencing cap agreed to in return for McClough’s plea of guilty. McClough argues that his counsel was ineffective on the face of the record for failing to object to a sentence that exceeded the cap agreed to by the State and accepted by the trial court at the plea hearing and for failing to file a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(i).

McClough entered a plea to charges of robbery with a firearm and possession of a firearm by a convicted felon. In exchange for the plea, the State agreed to cap McClough’s sentence at twenty years with a ten-year minimum-mandatory term on the robbery charge and a concurrent sentence on the possession charge. The trial court accepted McClough’s plea and expressly agreed to the twenty-year cap, explaining to McClough that he was facing a maximum term of twenty years in prison and that he could be sentenced to a period of supervision following the ten-year minimum mandatory. Sentencing was then set for a later date.

At the sentencing hearing, following the testimony of various witnesses and argument from both the State and the defense, the trial court found no mitigating factors and concluded that but for the agreement, the court would have sentenced McClough to the maximum of life in prison. The court then sentenced McClough to twenty years in prison, followed by two years of community control, and a ten-year minimum-mandatory term on the robbery conviction. The court also sentenced McClough to a concurrent fifteen years, with a three-year minimum mandatory on the possession conviction.

It is clear that in sentencing McClough the trial court exceeded the negotiated cap. However, this issue was not preserved for review as trial court error. Fla. R.App. P. 9.140(b)(2)(A)(ii)(b); see Ross v. State, 848 So.2d 392, 392 (Fla. 2d DCA 2003). As such, we must consider McClough’s claim that counsel’s inaction amounted to ineffective assistance of counsel on the face of the record.

“The general rule is that a claim of ineffective assistance of counsel may not be raised on direct appeal.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). However, “[o]n rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Id.; see also Smith v. State, 998 So.2d 516, 523 (Fla.2008) (concluding an appellate court may address an ineffective assistance claim on direct appeal only in “the rare case[] where both prongs of Strickland — the error and the prejudice-are manifest in the record”).

Counsel’s failure to file a motion to withdraw McClough’s plea is not per se ineffectiveness on the face of the record. See Williamson v. State, 974 So.2d 582, 584 (Fla. 2d DCA 2008). Neither is his failure to object to the sentence at the hearing. Given the trial court’s statements at sentencing, we can conceive of a tactical explanation for counsel’s silence. See Henson v. State, 977 So.2d 736, 739 (Fla. 2d DCA 2008); Williamson, 974 So.2d at 584. Counsel had a reasonable basis to be concerned that given another opportunity, the court would have allowed McClough to withdraw his plea and sentenced him to a significantly longer term. See Rollman v. State, 887 So.2d 1233, 1235 (Fla.2004); Goins v. State, 672 So.2d 30, 31 (Fla.1996). Thus, we cannot grant McClough relief on direct appeal.

Our affirmance is without prejudice to McClough filing a timely motion under Florida Rule of Criminal Procedure 3.850. See Hettick v. State, 977 So.2d 797, 798 (Fla. 2d DCA 2008).

Affirmed.

WHATLEY and KHOUZAM, JJ., Concur.


text:
    Joshua MITCHELL, a/k/a Joshua Earl Mitchell, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2442.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2011.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

In this direct appeal from his judgment and sentences, Joshua Mitchell challenges the imposition of sex offender probation and his designation as a sexual predator. We affirm the judgment and sentences. However, our affirmance is without prejudice to Mr. Mitchell’s right to file a timely, facially sufficient motion in accordance with Florida Rule of Civil Procedure 3.850. See Nedd v. State, 855 So.2d 664 (Fla. 2d DCA2008).

Affirmed.

WALLACE, KHOUZAM, and CRENSHAW, JJ., Concur.


author: THOMAS, J.

text:
    Terry LAYNE, Appellant, v. Nancy Marie LAYNE, In re Estate of Joe N. Layne a/k/a Joe Ned Layne, Deceased, Appellee.
    No. 1D11-2938.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Stacy J. Ford of Pohl & Short, P.A., Winter Park, for Appellant.
    Timothy P. Atkinson and Preston McLane of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee; Christopher E. Broome of The Broome Law Firm, Titus-ville, for Appellee.
   THOMAS, J.

Appellant appeals the trial court’s Order of Subsequent Summary Administration in which the court found that Appellant had no interest in certain real property held by his late father’s estate and, instead, distributed the property to Appellant’s sister and his father’s former wife. For the reasons explained below, we reverse.

Factual Background

The facts in this case were undisputed. In 1985, Appellant, along with his late father and Appellee, acquired a townhouse via warranty deed. The deed conveyed an undivided one-half interest in the property to Appellee and the father, as husband and wife, and the remaining one-half undivided interest to Appellant, all as joint tenants with right of survivorship. Five years later, Appellant executed a quitclaim deed conveying his interest in the property to his father and Appellee. As acknowledged in that deed, Appellant’s father and Appel-lee were no longer married when the deed was executed.

Nine years after that conveyance, Appellant’s father died intestate, leaving Appellant and his sister as his only beneficiaries. Appellee filed a Petition for Subsequent Summary Administration seeking distribution of the estate’s interest in the townhouse. The petition asserted that in 1990, Appellant conveyed his one-half interest in the townhouse to his father and Appellee which, upon the father’s death, resulted in one-half of the conveyed interest (i.e., one-quarter of the entire townhouse) inuring to the father’s estate. Appellee claimed that one-half of that interest should be distributed equally between Appellee and Appellant’s sister, with no portion going to Appellant.

Appellant also asserted that the estate holds a one-quarter interest in the property. Appellant contested the petition, asserting that he and his sister, as sole beneficiaries of the estate, were each entitled to one-half of the estate’s interest in the property, and Appellee was not entitled to any portion of the estate’s interest.

At the hearing below, Appellee argued that Appellant was not entitled to any interest in the property because his quitclaim deed conveyed any and all interest he had in the property, including the right to take by the intestacy laws. Appellee further argued that the doctrine of “after-acquired title” barred Appellant from regaining his interest in the property and entitled Appellee to the interest she claimed.

The trial court issued an Order of Subsequent Summary Administration and distributed the property held by the estate. Appellee received a one-half interest, and Appellant’s sister received the other one-half interest. As to Appellant, the court found that he would take nothing “because he conveyed away all of his interest therein to [the father and Appellee] by his QuitClaim Deed executed” in 1990.

Analysis

The court’s ruling on this issue was an application of uncontested facts to the law; thus, our review is de novo. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010) (holding question of law applied to undisputed facts reviewed de novo).

Although the trial court discussed during the hearing the after-acquired title doctrine relied upon by Appellee, it is unclear from its order whether the court relied on that doctrine in finding Appellant is not entitled to any interest in the property, whether the court found that Appellant’s quitclaim deed conveyed away any right to the property he may have under the intestacy laws, or some combination of both. In either case, the court erred.

First, the after-acquired title doctrine has no application here. That doctrine addresses a situation in which a person purports to convey to another an interest in property he does not possess and then, after actually obtaining that interest, seeks to avoid the consequences of the conveyance on the ground that he had no interest to convey in the first place. Stated another way:

Legal estoppel or estoppel by deed is defined as a bar which precludes a party to a deed and his privies from asserting as against others and their privies any right or title in derogation of the deed, or from denying the truth of any material fact asserted therein. In other words, legal estoppel contemplates that if I execute a deed purporting to convey an estate or land which I do not own or one that is larger than I own and I later acquire such estate or land, then the subsequently acquired land or estate will by estoppel pass to my grantee.

Trustees of the Internal Improvement Fund v. O.H. Lobean, 127 So.2d 98, 102 (Fla.1961) (emphasis added).

The court in Lobean also explained another aspect of the doctrine: “ ‘An equitable estoppel, as affecting land titles, is a doctrine by which a party is prevented from setting up his legal title because he has through his acts, words, or silence led another to take a position in which the assertion of the legal title would be contrary to equity and good conscience.’ ” Id. (quoting Fla. Land Inv. Co. v. Williams, 98 Fla. 1258, 116 So. 642, 643 (1928)).

In both situations contemplated by the after-acquired property doctrine, the underlying concern is fraud or inequity. Such fraud or inequity may result from a party conveying or attempting to convey an interest in property which the purported conveyor does not possess and then, when that person later acquires that interest, the conveyor attempts to convey the property to someone else. Or, the fraud or inequity may occur when the conveyor challenges the prior conveyance on the grounds it was ineffective.

Neither scenario exists here. Appellant did in fact have the interest in the property which he conveyed in the quitclaim deed. He did not later obtain title to that interest and then attempt to nullify the quitclaim deed by claiming that it was invalid, because he did not possess the interest he conveyed. There was thus no fraud or inequity based on an attempt to defeat the quitclaim deed. Rather, Appellant sought only distribution of the portion of property to which he was entitled as a beneficiary of his father’s estate. Furthermore, this court has held that “a mere quitclaim or release by deed is not an estoppel upon the releasor as to any after-acquired interest.” Van Pelt v. Estate of Clarke, 476 So.2d 746, 747 (Fla. 1st DCA 1985). Thus, although Appellant deeded his interest in the property to his father, he is not later barred from obtaining an after-acquired interest in that property, absent fraud, inequity or some other legal ground.

Appellee argues unpersuasively that Appellant seeks to use the intestacy laws to “reacquire the very same interest in the Property that he willingly gave away without provision to retain any survivorship right.” Appellant is not seeking to get the property back “as a benefit of survivorship over” his late father and Appellee. This observation, however, raises the possible alternative basis for the trial court’s finding.

The court’s order states that Appellant’s quitclaim deed operated to “convey all of his interest” in the townhouse; thus, he is not entitled to any portion of the property that would otherwise pass to him as a beneficiary of his father’s estate. Any right Appellant has to take an interest in the property as a beneficiary did not, however, exist at the time Appellant executed the quitclaim deed. A quitclaim deed conveys only that interest in a property held by the grantor at the time of the conveyance. See, e.g., Blitch v. Sapp, 142 Fla. 166, 194 So. 328, 330 (1940) (holding “a ‘quit-claim’ deed yields only such interest in land as the grantor had at the time of the making of such deed.”). In other words, “[t]he possibility that a person will inherit property from an ancestor is but an expectancy and not an interest in property. While a descendant may expect or hope to inherit, neither a present nor future interest in property actually exists in the absence of a conveyance.” Diaz v. Rood, 851 So.2d 843, 845 (Fla. 2d DCA 2003); see also § 732.101(2), Fla. Stat. (“The decedent’s death is the event that vests the heirs’ right to the decedent’s intestate property.”).

We recognize that the court in Diaz also held that it is possible to convey an expectancy. 851 So.2d at 845. In that case, however, the assignment in question made it clear that the grantor was doing just that; here, the quitclaim deed conveyed only Appellant’s interest in the townhouse as it existed at the time of the conveyance. It did not expressly convey any future right to the property Appellant may acquire by virtue of an expectancy, such as a will or via intestacy.

This leaves one matter remaining for resolution. The trial court’s order is silent as to the extent of the estate’s interest in the property. Both parties agree that the estate holds a one-half interest in the property, despite the assertions in their respective pleadings below that it holds a one-quarter interest. The parties are correct, because the interest in the property held by the father and Appellee converted into a tenancy in common when they divorced. See § 689.15, Fla. Stat. (providing that the “doctrine of the right of survivor-ship in cases of real estate and personal property held by joint tenants shall not prevail in this state ... except in cases of estates by entirety ...; and in eases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common.”). Thus, when Appellant conveyed to them his one-half interest in the property, they each owned one-half of the townhouse; upon the father’s death, his one-half share went to his estate. Thus, the trial court’s revised order should distribute one-half of the estate’s interest to Appellant and one-half to his sister, resulting in each of them receiving a one-quarter interest in the whole property.

Conclusion

For the foregoing reasons, we REVERSE the trial court’s order and REMAND for proceedings consistent with this opinion.

DAVIS and VAN NORTWICK, JJ., concur.


text:
    DEPARTMENT OF REVENUE obo Alanna H. SHERMAN, Appellant, v. Keith P. DALY, Appellee.
    No. 1D11-2319.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellant.
    No appearance for Appellee.
   WOLF, J.

The Department of Revenue (DOR) seeks review of an administrative support order which deviated from the child support guidelines based on a verbal, non-formalized visitation agreement. Because we agree this deviation is prohibited by Florida law, we reverse.

At the hearing below, both the mother and father testified that they shared overnight stays with their daughter, with the mother sharing approximately 60% of the overnight stays and the father sharing 40%. The parents never had a written parenting plan authorized by a trial court, but instead decided visitation among themselves. The administrative law judge (ALJ) deviated from the child support guidelines, finding the father shared substantial visitation with his daughter. DOR seeks review of the order.

In interpreting statutes, “[[legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla. 2009). “ ‘[T]he statute’s text is the most reliable and authoritative expression of the Legislature’s intent.’ ” Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815, 820 (Fla.2007) (quoting V.K.E. v. State, 934 So.2d 1276, 1286 (Fla.2006)). Courts are ‘without power to construe an unambiguous statute in a way which would extend ... its express terms.... To do so would be an abrogation of legislative power.’ ” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). With these principles in mind, we turn to the pertinent statutory sections related to the issue before us.

Section 61.30, Florida Statutes (2010), governs the calculation of child support in the underlying case and prohibits more than a 5% deviation from the child support guidelines except in certain circumstances. Sections 61.30(ll)(a) and (b) provide the only possible justification for the underlying deviation; however, neither provision authorizes deviation in the underlying case.

Pursuant to section 61.30(ll)(b), a trier of fact shall deviate from the guidelines “[wjhenever a particular parenting plan provides that each child spend a substantial amount of time with each parent,” and further provides directions to adjust the calculations. (Emphasis added). “Substantial amount of time” is defined as exercising “time-sharing at least 20 percent of the overnights of the year.” § 61.30(ll)(b)(8), Fla. Stat. The term “parenting plan” is defined as “a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time-sharing schedule for the parents and child.” § 61.046(14), Fla. Stat. (2010). Further, a parenting plan must be (1) “[djeveloped and agreed to by the parents and approved by a court; ” or (2) “Established by the court, with or without the use of a court-ordered parenting plan recommendation, if the parents cannot agree ... or the parents agreed to a plan that is not approved by the court.” Id. (emphasis added).

Here, the statutes’ plain meaning evidences the Legislature’s intent to require deviations from the child support guidelines only where a parent shares at least 20% of the overnight stays pursuant to a court authorized parenting plan. See §§ 61.046(14), 61.30(11), Fla. Stat. In the underlying case no such plan existed, and thus, deviation was not authorized pursuant to section 61.30(ll)(b).

Moreover, the ALJ was not authorized to deviate from the child support guidelines pursuant to section 61.30(ll)(a), the only other relevant statutory provision authorizing deviation by more than 5%. Section 61.30(ll)(a) authorizes a trier of fact to deviate from the child support guidelines for a limited set of equitable reasons when:

10. The particular parenting plan, such as where the child spends a significant amount of time, but less than 20 percent of the overnights, with one parent, thereby reducing the financial expenditures incurred by the other parent; or the refusal of a parent to become involved in the activities of the child.
11. Any other adjustment that is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt that the parties jointly incurred during the marriage.

While the foregoing provision allows the trier of fact to deviate from the child support guidelines to “achieve an equitable result,” this allowance is prefaced by the phrase “[ajny other adjustment that is needed.” § 61.30(ll)(a)(ll), Fla. Stat. The addition of the term “other” indicates the adjustment must be based on some other grounds not already expressed in the subsection. Id. Section 61.30(ll)(a)(10) expressly requires that an equitable deviation based on time-sharing be awarded only where (1) there exists a “parenting plan,” and (2) the parent has time-sharing with the child for less than 20% of the time. As noted above, a parenting plan is defined in section 61.046(14) as a court-approved parenting plan with a time-sharing arrangement that can be created through mediation and later approved by a court, or approved by a court where the parties cannot agree. Thus, the plain language of the statute prohibits a trial court from deviating from the guidelines based on a verbal visitation agreement even where equity compels the deviation.

Further, to the extent section 61.30(ll)(a)(ll) could be read as allowing deviations for any equitable reason, the provision would conflict with section 61.30(ll)(a)(10). It is well-established that “where two statutory provisions are in conflict, the specific statute controls the general statute.” Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000) (citing State ex rel. Johnson v. Vizzini, 227 So.2d 205 (Fla.1969)). “[I]t also is well settled that when two statutes are in conflict, the more recently enacted statute controls the older statute.” Id. (citing McKendry v. State, 641 So.2d 45 (Fla.1994)). Here, section 61.30(ll)(a)(10) is both the more specific and more recently enacted statute. See Ch. 2008-61, § 16, Laws of Fla.; Ch. 2001-158, § 16, Laws of Fla. As such, if conflict existed, subsection 61.30(ll)(a)(10) would control in the underlying case, thereby preventing the ALJ from deviating without a written, court-authorized parenting plan.

Because the Legislature has expressed its intent to authorize deviations from the child support guidelines only where there exists a written, court-authorized parenting-plan, we reverse the underlying order and remand for further proceedings consistent with this opinion.

HAWKES and ROBERTS, JJ„ concur.


author: ROBERTS, J.

text:
    L.J. JOHNSON, Appellant, v. Robert L. “Skip” JARVIS, Jr., State Attorney for the Third Judicial Circuit of Florida, Appellee.
    No. 1D11-1710.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Kevin “Kit” Carson, Lake City, for Appellant.
    Robert L. “Skip” Jarvis, Jr., pro se, Appellee.
   ROBERTS, J.

The appellant, L.J. Johnson, seeks review of the trial court’s order dismissing his complaint for declaratory and injunc-tive relief under Florida’s Public Records Law, chapter 119, Florida Statutes (2010). We find that the dismissal was inappropriate and reverse and remand for an eviden-tiary hearing on the merits.

The appellee, Robert L. “Skip” Jarvis, Jr., is the State Attorney for the Third Judicial Circuit of Florida, which includes the counties of Columbia, Suwannee, Hamilton, Dixie, Lafayette, Taylor, and Madison. The appellee promulgated a public records policy whereby requests to inspect or copy case files under chapter 119 were to be directed to his main office in Live Oak, Suwannee County, Florida, so that he could personally review each case file to ensure no exempted information was disclosed.

The appellant, a resident of Lake City, Columbia County, Florida, filed a complaint against the appellee for declaratory and injunctive relief containing the following allegations. After his arrest following an incident at a Lake City Wal-Mart store, the appellant’s case was assigned to an Assistant State Attorney (ASA) in Lake City for prosecution. The ASA was given custody of the appellant’s case file which included witness statements and video surveillance from the Wal-Mart store. The appellant’s attorney made an appointment with the ASA to view the video and pick up copies of witness statements. When the appellant’s attorney arrived at the ASA’s office, he was informed that charges against the appellant had been dropped. He was also informed that since a “No Information” had been filed, access to the witness statements and surveillance video needed to be accomplished through a public records request.

The complaint further alleged that the appellant’s attorney made a verbal public records request in the ASA’s office. Although the case file was within reach, the ASA denied the request to inspect the records. After refusing to provide the records, the ASA informed the appellant’s attorney of the appellee’s public records policy and suggested that he put the request in writing. The appellant’s attorney promptly wrote a public records request which the ASA placed in the case file to be transported to the Live Oak office. Thereafter, the appellant received a letter from the appellee informing him that the records would be made available at the Live Oak office and that he should contact the appellee’s legal assistant to arrange a date and time for inspection.

The appellant’s complaint argued that the refusal to produce the requested records in Lake City was unreasonable and in violation of section 119.07, Florida Statutes (2010), and Article I, section 24 of the Florida Constitution. The complaint also argued that the appellee’s policy of removing public records from the custody of their home counties to Live Oak and requiring inspection there was unreasonable, caused unnecessary expense and delay, and was a violation of sections 119.07 and 119.021, Florida Statutes (2010), and Article I, section 24 of the Florida Constitution. The appellant sought judgment against the appellee in the nature of an order requiring the appellee to permit inspection of the records in Lake City, enjoining the appellee from removing files from the office where they were ordinarily used and requiring inspection in Live Oak, and granting attorney’s fees and costs.

The appellee filed a motion for dismissal and attorney’s fees and costs arguing, among other things, that the complaint failed to state a cause of action because there was no refusal of access to the records. Although an accelerated hearing on the complaint was scheduled under section 119.11, Florida Statutes (2010), the trial court only heard argument on the motion to dismiss, not on the merits of the appellant’s complaint. The trial court granted the motion to dismiss, finding that there had been no refusal to provide the requested records and “the place, time, and conditions for compliance (providing the records) [was not] unreasonable.”

A trial court’s order of dismissal is subject to de novo review. See Brewer v. Clerk of Circuit Court, Gadsden County, 720 So.2d 602, 603 (Fla. 1st DCA 1998). In ruling on the motion to dismiss, the trial court was required to confine its analysis to the four corners of the complaint, treat all of the complaint’s well-pleaded allegations as true, and resolve all inferences drawn from those allegations in the appellant’s favor. See Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204, 1206-07 (Fla. 5th DCA 2003).

The appellant’s complaint alleged instances of refusal and facially stated a cause of action under chapter 119. Accordingly, we reverse the order dismissing the complaint and remand for an evidentia-ry hearing on the merits. See Grace v. Jenne, 855 So.2d 262 (Fla. 4th DCA 2003) (reversing order dismissing the appellant’s complaint and finding the order, entered without an evidentiary hearing, was premature); Puls v. City of Port St. Lucie, 678 So.2d 514 (Fla. 4th DCA 1996) (reversing order granting motion to dismiss and remanding for an evidentiary hearing on the issue of whether, under the facts of the case, there was an unlawful refusal of access to the records within the meaning of section 119.12(1), Florida Statutes (1995)); James v. Loxahatchee Groves Water Control Dist., 820 So.2d 988 (Fla. 4th DCA 2002) (granting mandamus and directing the trial court to hold a hearing and determine if plaintiffs request to examine defendant’s records at defendant’s office should be granted, and if so, under what conditions pursuant to sections 119.07(l)(a) and (b)).

On remand, the trial court must determine whether there was a delay to produce the requested records and, if so, whether the delay was reasonable under the facts of this case. The reasonableness of the appellee’s policy itself is not the subject of the inquiry. Rather, the inquiry centers on whether the application of the policy resulted in an unjustified delay that amounted to an unlawful refusal to comply with chapter 119. See e.g., Barfield v. Town of Eatonville, 675 So.2d 228 (Fla. 5th DCA 1996) (“An unjustified delay in complying with a public record request amounts to an unlawful refusal under section 119.12(1), Florida Statutes.”).

We REVERSE and REMAND for an evidentiary hearing.

THOMAS and CLARK, JJ., concur.