author: POLEN, J.

text:
    L.K., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D10-5124.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.
    Patricia A. Gainer-Gaddis of Patricia A. Gainer-Gaddis, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee.
   POLEN, J.

Appellant, L.K., appeals the trial court’s final order terminating her parental rights as to her daughter, G.B. We find that the trial court erred in terminating L.K’s parental rights as to G.B. when the trial court excluded evidence that L.K. substantially complied with her case plan. Accordingly, we reverse the trial court’s determination and remand this case for further proceedings to allow the parties to offer additional testimony.

On or about June 25, 2009, the State of Florida received an abuse report of which L.K. and her infant child were the subjects. Dependency proceedings were initiated the next day. Probable cause for removal was found and the child was placed in the Department’s custody. The Department filed a verified petition for dependency against L.K. L.K. was granted weekly visits with G.B. as part of an imposed family case plan, beginning July 27, 2009. L.K. attended only two or three of those scheduled visitations before she was arrested for narcotics in September. During the visitations, G.B. responded favorably toward L.K. and it was clear the two had a positive relationship with one another.

On September 21, 2009, while she was incarcerated, L.K. consented to an amended petition for dependency. The amended petition assigned L.K. several tasks, including: substance abuse evaluation; random drug testing; parenting classes; psychosocial evaluations; psychiatric evaluations; stable housing; stable income; and seventy-two hour notification to ChildNet when moving. The case plan was accepted by the court and an order was entered adjudicating G.B. dependent.

L.K. sent G.B. several cards and letters through G.B.’s grandfather during her incarceration. According to L.K., she tried to call the Department to find out about her child, but she was unable to get through because she could only call collect. So, instead, she called G.B.’s grandfather for updates, including photographs and information regarding the well-being of the child. Also while incarcerated, L.K. was in work release and attending intensive rehabilitation.

On April 30, 2010, the Department filed a petition for termination of parental rights. The Department alleged abandonment, pursuant to section 39.01(1) of the Florida Statutes, as its only ground for termination as to L.K. L.K. argued the trial court erroneously excluded evidence of her compliance with her case plan and, instead, focused solely on her attempts to communicate with the child. Final judgment of termination of parental rights was entered and the court found that the Department met its burden by clear and convincing evidence as to the allegations that L.K. had not made enough of an effort to establish a substantial relationship with the child and that it is in the child’s best interests to terminate parental rights. This appeal followed.

In I.Z. v. B.H., it was noted by this court that:

A termination of parental rights proceeding involves a two-step process. First, the court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes (2002), has been proven. Second, the court must determine what outcome is in the manifest best interest of the children.

53 So.3d 406, 408 (Fla. 4th DCA 2011). In determining the manifest best interests of the child, all relevant factors must be considered. J.G. v. Dep’t of Children & Families, 22 So.3d 774, 775 (Fla. 4th DCA 2009). “In addition, the Department must establish that termination of parental rights is the least restrictive means of protecting the child from harm.” Id.

Section 39.01(1), Florida Statutes, provides:

“Abandoned” or “abandonment” means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child .... “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities .... The incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment.

§ 39.01(1), Fla. Stat. (2010). “To reverse a trial court’s determination that” a child was abandoned, the appellate court must find that the determination was not “supported by clear and convincing evidence.” In re E.D., 884 So.2d 291, 294 (Fla. 2d DCA 2004). Section 39.01(1) is a two-prong test. First, the parent must have been able to support the child and, second, the parent failed to establish a relationship with the child. See § 39.01(1), Fla. Stat. (2010).

Here, the trial court ruled that L.K’s alleged attempts to substantially comply with her case plan were irrelevant to its determination of abandonment and that the only relevant factor was whether the mother communicated and developed a relationship with G.B. L.K. argued that any evidence of her potential compliance with a case plan would show the intent to assume parental duties and responsibilities and is, therefore, relevant and admissible.

The Department relied on this court’s ruling in A.B.E. v. Department of Children and Families to show a finding of abandonment was proper where no inquiries were made into the welfare of the child. 47 So.3d 347 (Fla. 4th DCA 2010). That case can be distinguished from the instant case where L.K. did inquire about her child, albeit through the child’s grandfather rather than the Department. L.K. also sent cards and letters and received photographs of the child regularly and requested that the child come for a visit at the jail, but that request was denied by the Department. L.K. attempted to make contact with the Department to inquire about her child’s well-being, but was unable to because the Department’s phone did not accept collect calls, which was L.K.’s only means of communication from jail.

The Fifth District Court of Appeal in B.T. v. Department of Children and Families stated that “ “while incarceration is a factor that the court can consider in determining whether a child has been abandoned, the parent’s efforts, or lack thereof, to assume parental duties while incarcerated must be considered in light of the limited opportunities to assume those duties while in prison.’ ” 16 So.3d 940, 941 (Fla. 5th DCA 2009) (quoting In re T.H., 979 So.2d 1075, 1080 (Fla. 2d DCA 2008)). L.K. allegedly attempted to substantially comply with her case plan, which she argued would have proven her intent to assume parental duties upon completion of the plan. However, the trial court improperly excluded evidence to make a determination regarding substantial compliance. As L.K. contended, Florida courts have considered the totality of the circumstances pursuant to their supreme court’s ruling in In re M.F., 770 So.2d 1189, 1194 (Fla.2000). As such, the trial court in this matter should have considered the attempts at substantial compliance that L.K. claimed to have made before determining that her parental rights should be terminated.

Therefore, even though L.K. was unable to make contact with G.B., L.K. evinced intent to contact her child, have visits with her child, and receive information, photographs, and updates. Also, L.K. possibly made efforts to substantially comply with her case plan and it was erroneous to penalize her and find that she abandoned her child without first allowing for presentation of any evidence which may show those efforts. Accordingly, we reverse the decision of the trial court to terminate L.K.’s parental rights as to G.B. and remand this ease to the lower court for further proceedings to allow the parties to offer additional testimony relating to L.K’s alleged attempts to substantially comply with her case plan.

Reversed and Remanded.

WARNER and LEVINE, JJ., concur.

      . The factors are set forth under section 39.810, Florida Statutes.


source: Caselaw Access Project

license: Public Domain

text:
    Dennis BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-632.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Dennis Bryan, appeals the order of the trial court denying his motion to suppress evidence and the subsequent judgment of conviction against him. We find that the trial court erred in its denial of Bryan’s motion to suppress evidence which was seized during a warrantless search of his home.

An anonymous tip was called into the police department and officers were dispatched to 15 Redwood Circle in Plantation, Florida. Officers were told that there were three black males in front of the home by a white sports utility vehicle (“SUV”), with possible narcotics on the hood, and that one of them had a handgun. When the first officer, Officer Tofexis, arrived, there were people in front of the house and children riding their bikes, but there was nobody matching the description from the tip. Only a white SUV parked outside coincided with the dispatcher’s information.

Officer Tofexis waited for additional police units to search the premises because three individuals, one with a handgun, were the subjects of the call. The officers first ensured no one was inside the vehicle and then began to search the perimeter of the house. When Officer Tofexis and an assisting unit, Officer Bickham, neared the gate to the house, Officer Tofexis thought she heard voices coming from the backyard. Officers Tofexis, Bickham, and additional officers Radziwon and Miller approached the back of the house to see if anyone was there and possibly armed. The officers were primarily concerned with the safety of those on the street, so, without obtaining a warrant, they entered through the gate. When the officers reached the back door, they looked through a broken window to see if anyone was in the home and they noticed a green, leafy substance that appeared to be marijuana and the strong odor of marijuana coming from the house.

The officers returned to the front of the house and saw a black male, Omar Maxwell, inside. Maxwell exited the house upon Officer Radziwon’s request, leaving the front door open. Officer Tofexis could see marijuana in the kitchen through the open front door, but no additional suspects were visible in the home. After Maxwell was searched for weapons and detained, appellant, Dennis Bryan, walked up to his house. Out of concern for the safety of the officers and those in the street, a protective sweep was performed to see if a third suspect was in the house with the reported weapon. Officer Radziwon admitted at trial that the sweep was done solely based on the anonymous tip that came into the police department and that no efforts were made to corroborate the tip.

The trial court supported the officers’ entry into Bryan’s backyard to conduct a “limited search” pursuant to the tip. It was concluded that the tip was corroborated when the vehicle was spotted outside the house and again when drugs were seen inside the house through a window while officers were in the backyard. Once the officers spotted Maxwell inside the home and recognized he was a black male, in further corroboration of the tip, the court determined a protective sweep was appropriate.

The trial court denied Bryan’s motion to suppress the evidence found in his home and allowed Bryan to reserve the right to appeal. Bryan pled no contest and the court stayed his sentence, pending the outcome of the appeal. This appeal followed.

“[T]he standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.” State v. Goodwin, 36 So.3d 925, 926 (Fla. 4th DCA 2010); State v. Abbey, 28 So.3d 208, 210 (Fla. 4th DCA 2010).

Warrantless searches are per se unreasonable and subject to only a few exceptions. Bryan relied on Coolidge v. New Hampshire to support his position that there must be an exigent circumstance that made a warrantless search “imperative.” 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Exigent circumstances have been defined as “ ‘the sort of emergency or dangerous situation ... that would justify a warrantless entry into a home for the purpose of either arrest or search.’” Riggs v. State, 918 So.2d 274, 278 (Fla.2005). To rise to this level, the emergency must be so that it “‘makes a warrantless search imperative to the safety of the police and of the community.’ ” Id. Safety is threatened when a need exists “ ‘to protect life and to prevent serious bodily injury.’ ” Id. at 279.

Backyard Entry

This court has noted that any area within the curtilage of the home deserves the same protection as the home itself. Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1057 (Fla. 4th DCA 2003). “Curtilage can include the backyard of a residence.” Id. As stated above, warrantless searches are per se unreasonable if there is no applicable exception, but police need have only a reasonable belief that exigency exists to conduct a warrantless, narrow search. See Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

In Regalado v. State, 25 So.3d 600, 606-07 (Fla. 4th DCA 2009), the officer actually saw a gun, yet it was deemed improper for the officer to take action because the mere observation of a gun was not an indication that a crime had been or was going to be committed. This court explained that an anonymous tip without any signs of past, present, or future criminal activity cannot give rise to a constitutional stop or search.

Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean by mere observation. Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment. In this case, neither the anonymous tip nor the officer’s observations revealed any suspicion of past, present, or future criminal activity. Therefore, there was no authority for the officer to pull his gun and order the defendant to the ground.

Id. (emphasis added; footnote omitted).

Here, officers entered the curtilage of the home to investigate acting solely on an anonymous tip, only corroborated the tip to the extent that a white SUV was in front of the home, and had no indication from viewing the scene that a crime had been, was being, or would be committed. The officers were concerned that a gun and drugs were seen on the hood of the SUV, and there were children playing in the neighborhood, but when the officers arrived at the scene there did not appear to be anyone in sight that may have a gun. The circumstances did not present a situation of exigent circumstances justifying intrusion into the curtilage of the house despite the fact that the SUV was parked in front. Because a warrantless search is unlawful when no exception applies and because the State did not prove through testimony or evidence that some reasonable belief of exigency existed, a warrant should have been obtained before police entry into Bryan’s backyard.

As such, the entry into Bryan’s backyard was improper and any evidence obtained as a result of that entry should have been suppressed at trial. That would include the observation of drugs in the house, which led to the sweep of the home.

Decisions regarding law enforcement are always difficult. Police officers have extraordinarily tough jobs and we cannot ask officers to take unreasonable risks while performing their duties. However, in this case, a warrantless search was unjustified. It would have been proper for the officers to make contact with any suspects encountered in public areas or approached as a lawful citizen encounter and obtain a warrant before conducting a search of the home. But that did not happen. Thus, it is this court’s decision to reverse the trial court’s denial of Bryan’s motion to suppress.

Reversed.

WARNER and CONNER, JJ„ concur.

      . As we noted earlier, mere possession of a gun is not illegal in Florida. If the officers in this case would have remained on the scene while awaiting the issuance of a warrant and other factors gave the officers reasonable suspicion that criminal conduct was imminent, such might have been enough to create exigent circumstances, thus justifying a warrant-less search. However, that did not occur here.


author: WARNER, J.

text:
    Richard WILSON, Plant Explorers, LLC, and Excalibur Fruit Trees, LLC, Appellants, v. PALM BEACH COUNTY, Appellee.
    No. 4D10-58.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.

      Richard A. Kupfer of Richard A. Kup-fer, P.A., Delray Beach, and John F. Romano, Lake Worth, for appellants.
    Dawn S. Wynn, West Palm Beach, for appellee.
   WARNER, J.

A landowner appeals a summary judgment in favor of Palm Beach County declaring that the Right to Farm Act did not preempt the County’s enforcement of ordinances enacted prior to its passage. The court also determined that the special permitting requirements of county ordinances were not covered by the Act, because they did not limit farming operations. Finally, the court determined that the County enacted its development code pursuant to its home rule powers as much as Chapter 163, and therefore it had the power to regulate agricultural uses pursuant to its home rule powers even though Chapter 163 excluded agricultural uses from its terms. Because the Right to Farm Act does not prohibit enforcement of ordinances in existence at the time of the adoption of the Act, we affirm in part the declaratory judgment. We reverse, however, as to the court’s conclusion that the special permit conditions and setbacks did not limit farming operations, as genuine issues of material fact remain. We affirm the determination that the county ordinances are not preempted by the exclusion of agricultural uses from section 163.3164, Florida Statutes.

Plaintiffs/appellants, Richard Wilson, and his two business entities, Plant Explorers, LLC, and Excalibur Fruit Trees, LLC, own and operate a nursery on several parcels of land located in unincorporated Palm Beach County. The land is located in an agricultural-residential zoning district. Wilson has owned most of the land for over twenty years, but he purchased one of the parcels in 2005. Wilson has obtained a Grower’s Certificate and a State Nursery Inspection License for his operations.

In September 2007, a neighbor of the nursery complained to Palm Beach County about burning activities on Wilson’s property. Due to the complaint, an agent of the County conducted a site visit to the property. Although the County agent found no violation in connection with the burning, the County issued a Notice of Violation, indicating that Wilson was in violation of the Unified Land Development Code (“ULDC”) because he was “operating a wholesale or retail nursery without the proper zoning approval” and was maintaining landscaping materials, equipment, and vegetation debris without zoning approval. The County threatened to shut his business down unless he complied. Wilson advised the County that he would comply with its demands “under protest.” Throughout the dispute, Wilson maintained that his activities were protected by the Florida Right to Farm Act.

In July 2008, Plant Explorers, LLC, filed a special permit application for the 2005 parcel. The County issued a “Special Permit” which allowed the operation of the business on the 2005 parcel if certain conditions were met. The conditions required the business to comply with specific portions of the ULDC, including, among other provisions: 1) mandatory set-back provisions for outdoor storage areas, structures, and plants in containers; 2) a prohibition of the operation of commercial vehicles from 7:00 p.m. to 6:00 a.m.; and 3) a requirement of a buffer adjacent to all parking, loading, and internal roads. However, no general condition in the Special Permit required the nursery to comply with the ULDC as a whole.

In response to the County’s demand of the permits and conditions, the plaintiffs filed a verified complaint against the County seeking declaratory and injunctive relief on the grounds that: 1) the special permit conditions violated Florida’s Right to Farm Act, and 2) the plaintiffs’ activities were farming operations which did not constitute “development” for the purposes of the ULDC and its enabling legislation. The County answered, denying that Wilson was a “farmer” and denying that the plaintiffs were engaged in farming operations.

The County filed a motion for summary judgment, arguing that: 1) the Right to Farm Act restricts only new ordinances, not the enforcement of pre-existing ordinances; 2) the County’s zoning permit regulations regarding nurseries are not governed by the Right to Farm Act because they are not intended to limit farming operations; and 3) restrictions on the term “development” under Chapters 163 and 380, Florida Statutes, did not prohibit the County’s ordinances, which were authorized under more general grants of constitutional and statutory authority.

The trial court held a hearing on the summary judgment motion and ultimately entered final summary judgment in favor of the County. The trial court first concluded that the Right to Farm Act’s prohibition against the adoption of any local ordinances that restrict farm activity on agricultural land would not affect the enforcement of pre-existing' ordinances, but would only “limit adoption of new ordinances from the date the Legislature first prohibited such adoption, which occurred on June 16, 2000.” The trial court noted that the requirement for wholesale nurseries to obtain a special permit was modified in 2002 and, therefore, the current iteration of the requirement did not pre-date the Right to Farm Act’s prohibition against the adoption of new ordinances. However, the court concluded that neither the procedural requirement of obtaining a special permit nor the setback and other permit conditions were regulations “to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation” in contravention of the statute. Finally, the court concluded that Palm Beach County had the authority as a charter county to enforce the provisions of its ULDC on farming activities, notwithstanding the limited definition of “development” in Chapter 163, Florida Statutes. Accordingly, the trial court entered final summary judgment in the County’s favor, prompting this appeal.

Section 823.14(6), Florida Statutes, provides in relevant part:

It is the intent of the Legislature to eliminate duplication of regulatory authority over farm operations as expressed in this subsection. Except as otherwise provided for in this section and s. 487.051(2), and notwithstanding any other provision of law, a local government may not adopt any ordinance, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461, where such activity is regulated through implemented best management practices or interim measures developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or water management districts and adopted under chapter 120 as part of a statewide or regional program.

This subsection of the Right to Farm Act became effective on June 16, 2000. See Laws of Fla., Ch. 2000-308, § 39.

Courts must determine legislative intent primarily from the language of the statute. See Golf Channel v. Jenkins, 752 So.2d 561, 564 (Fla.2000). “When a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Lee Cnty. Elec. Co-op., Inc. v. Jacobs, 820 So.2d 297, 303 (Fla.2002). The statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).

Applying those principles, in J-II Investments, Inc. v. Leon County, 908 So.2d 1140 (Fla. 1st DCA 2005), the First District considered identical language in section 163.3162, the Agricultural Lands and Practices Act (ALPA), and held that the statute’s prohibition on counties adopting ordinances relating to agriculture did not prevent the enforcement of provisions already in place. The court explained:

The plain, unambiguous terms of section 163.3162(4), Florida Statutes, prevent counties from adopting ordinances relating to agriculture. The statute does not address the enforcement of provisions already in place. If the legislature intended to include the term “enforce” in the statute, it clearly could have done so. See, e.g., § 403.7603, Fla. Stat. (2004) (“... no county or municipality shall adopt or enforce regulations that discriminate against privately owned solid waste management facilities ... ”) (emphasis added); § 163.3174(6), Fla. Stat. (2004) (“If a joint planning entity is in existence on the effective date of this act which authorizes the governing bodies to adopt and enforce a land use plan effective throughout the joint planning area ....”) (emphasis added). Thus, since the legislature did not include the word “enforce” in section 163.3162(4), Florida Statutes, we cannot assume that they intended to preempt all existing county regulations.

Id. at 1141 (citation omitted). Because the operative language of the ALPA is identical to the language in the Right to Farm Act, the same analysis applies, and the Right to Farm Act does not prohibit the enforcement of county ordinances enacted prior to the Act’s effective date. Palm Beach County’s ULDC was enacted in 1989. The Right to Farm Act provisions restricting local government from adopting ordinances restricting farming activities did not become effective until June 16, 2000. Furthermore, the set-back provisions, the non-conforming use requirements, and the zoning provisions for wholesale nurseries have existed within the ULDC since before June 16, 2000.

Appellants claim J-II’s analysis is inconsistent with the first sentence of the statute declaring the legislative intent to eliminate duplication of regulatory authority over fanning operations. We disagree. The first sentence states: “It is the intent of the Legislature to eliminate duplication of regulatory authority over farm operations as expressed in this subsection.” § 823.14(6), Fla. Stat. (emphasis supplied). What is expressed in the subsection is a prohibition on the adoption of further regulations. It does not prevent the enforcement of currently existing regulations. The trial court correctly declared that enforcement of the County’s ordinances enacted prior to 2000 is not prohibited by the Right to Farm Act.

One of the ordinances that the County sought to enforce, however, was adopted after the enactment of the Right to Farm Act. The ordinance pertaining to special permits for nurseries of less than five acres was enacted in 2002. Thus, appellants argue that the trial court erred in concluding that only certain types of zoning regulations are preempted, and it also erred in concluding that the zoning regulations on which the County’s special permit was conditioned do not impact the appellants’ farming operations. The County maintains that its requirement that appellants apply for and receive a special permit is merely a procedural requirement, although the permit imposes setbacks and other conditions. Whether these special permit conditions were all requirements in the code prior to the adoption of the Right to Farm Act is also unclear in the record.

The trial court relied on two Attorney General opinions in concluding that the enforcement of setback requirements would not impact farming operations. In 2001, the Florida Attorney General’s Office issued an opinion regarding whether a county may require a zoning compliance permit under its land development regulations for nonresidential farm buildings. See Op. Att’y Gen. Fla.2001-71 (2001). The opinion recognized that the Right to Farm Act prohibited local governments from adopting ordinances interfering with farm operations. The Attorney General concluded: “It would appear that a setback requirement would not necessarily limit a farm’s operation and would, therefore, apply to such construction.” (emphasis added). No facts in the opinion support this conclusion.

In 2009, the Florida Attorney General reaffirmed the opinion that a county has the authority to enforce its zoning regulations regarding the construction of a building on land classified as agricultural, if those regulations do not limit the operational activity of the bona fide farm operation. See Op. Att’y Gen. Fla.2009-26 (2009). However, in that case, the issue presented was the application of setback requirements to a building which could not be classified as a farm building but was more of a guest house on the property.

Nothing in the record supports the trial court’s conclusion that the conditions of this permit, including the setback requirements, would not interfere with farming operations. Other conditions of the permit require buffers adjacent to all parking, loading, and internal roads. Some conditions limit the hours of operation of large commercial vehicles. We have no way of knowing how these requirements impact the wholesale nursery operations on the property. We do not think it is authorized or appropriate for us to take the Attorney General’s statement that it appears that setback requirements would not impact farming operations as an adjudicated fact. While the actual application for a permit may be a procedural step which does not limit farming operations, the same cannot be said for the conditions on the permit which may require substantial modification of operations.

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). The record does not show that there are no genuine issues of material fact remaining. The County did not carry its burden, because it offered no proof that its permit conditions did not impact farming operations.

Finally, we affirm the trial court’s conclusion that Chapter 163’s definition of development, which excludes the use of land for agricultural purposes, does not preempt all local government regulation of agricultural uses. Section 163.3164(6) defines “development” by referencing section 380.04, which defines the term as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” § 380.04(1), Fla. Stat. However, section 380.04 also excludes various operations which do not involve “development” as defined in the statute, including “[t]he use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products; raising livestock; or for other agricultural purposes.” § 380.04(3)(e), Fla. Stat. If agricultural uses are excluded, then the terms of section 163.3164, et seq., would not apply to them, because they do not constitute “development.” Other statutes may restrict agricultural land uses. See, e.g., § 823.14(6), Fla. Stat. (The Right to Farm Act); § 604.50, Fla. Stat. (nonresidential farm buildings are exempt from the Florida Building Code and any county or municipal building code); § 163.3162, Fla. Stat. (Agricultural Lands and Practices Act). But agricultural use is not within the definition of development and governed by Chapter 163.3164.

In this case, the authority for the ULDC is not based exclusively on Chapter 163, but is also based upon the constitutional home-rule powers as well as the general authority granted under Chapter 125, Florida Statutes. The County has the authority pursuant to those grants of power to regulate the lands within its county to the extent that the regulation does not conflict with other statutes governing agricultural uses. Because the County has that authority, we agree with the trial court that Chapter 163 does not preempt the regulation in this case.

Affirmed in part, reversed in part, and remanded.

STEVENSON and TAYLOR, JJ„ concur.

      . The entire list of conditions set forth in the special permit is as follows: 1) provide proof that a viable wholesale nursery had been established on the property within six months of the special permit issuance; 2) limit operation of commercial vehicles over 1 ton or 10,000 pounds capacity from 7:00 p.m. to 6:00 a.m.; 3) maintain a 15 foot right-of-way buffer adjacent to office, parking, load, internal roads, and other non-growing areas within 50 feet of a right-of-way; 4) maintain a buffer along all property lines not screened by plant material; 5) maintain a 50 foot set-back for structures, greenhouses and outdoor areas; 6) maintain a 15 foot set-back for container plants; and 7) maintain a set-back for outdoor bulk storage of 50 feet or the district set-back, whichever is greater.


author: GERBER, J.

text:
    Anthony TEDESCO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4634.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.

      Anthony Tedesco, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The appellant appeals the circuit court’s order committing him as a sexually violent predator pursuant to the Jimmy Ryce Act, section 394.910 et seq., Florida Statutes (2009). The appellant primarily argues that the circuit court denied him due process by compelling him to go to trial without any notice of the trial date. The record supports the appellant’s argument. Therefore, we reverse and remand for a new trial.

On September 14, 2009, near the end of the appellant’s prison sentence, the state filed a petition seeking to have the appellant committed as a sexually violent predator. On September 15, 2009, the circuit court determined that probable cause existed to believe the appellant is a sexually violent predator. The court ordered the state to have the appellant immediately transferred from state prison to the county jail for a September 25, 2009 status hearing.

On September 24, 2009, the state filed with clerk the summons notifying the appellant of the petition. At the September 25, 2009 status hearing, the appellant requested to represent himself. The court conducted a Faretta inquiry and found that the appellant could represent himself. The court then announced that the trial would occur on October 19, 2009.

On October 5, 2009, two weeks before the scheduled trial date, the appellant was transported to court. The court announced:

When [the appellant] was in court on September 25th, the case was set for October 19th. On September 25th, after court, the case was reset for trial today, October 5th. Unfortunately, the elerk did not send copies of that notice to [the appellant],

(emphasis added). The court added that the trial was reset due to the “statutory guidelines” and “needs to be tried this week.” The following exchange then occurred between the appellant and the court:

APPELLANT: I’d like to place an objection on the record. I didn’t have enough time. I’m trying to get my evidence together for this trial and I just found out through no mistake of my own the trial has been set for October 5th and I’m preparing for October 19th. I’ve got evidence I’m trying to get myself.
THE COURT: All right. Well, if you’re not ready to go to trial, sir—
APPELLANT: I’m not waiving my speedy trial right.
THE COURT: Well, then you’re going to trial.... By statute these particular proceedings need to be done in a certain fashion in a time period. So, you can either waive that time period, which if you’d like to do—
APPELLANT: I’m not waiving the speedy trial.
THE COURT: You’re not waiving that. All right.

The court then directed the clerk to give questionnaires to prospective jurors waiting in the jury room so that jury selection and the trial could commence the following morning. The trial indeed commenced the following morning. After two days of trial, the jury returned a verdict finding that appellant is a sexually violent predator. The court entered a final judgment committing the appellant as a sexually violent predator.

The appellant then filed this appeal. He primarily argues that the circuit court denied him due process by compelling him to go to trial without any notice that the court reset the trial for October 5th.

We agree with this argument. “Procedural due process requires both reasonable notice and a meaningful opportunity to be heard.” N.C. v. Anderson, 882 So.2d 990, 993 (Fla.2004) (citation omitted). “ ‘[T]he specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding.’ ” Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1236 (Fla.2009) (citation omitted).

In this proceeding, the appellant was not given any notice of the October 5th trial date until he walked into court that day. It is not relevant that the clerk’s inadvertence caused the lack of notice or that jury selection and testimony did not commence until the following day. Going to trial without notice deprived the appellant of a meaningful opportunity to be heard. Because the appellant did not receive either reasonable notice or a meaningful opportunity to be heard, he was denied procedural due process.

The circuit court’s inquiry of the appellant as to whether he wanted to waive the time period for trial was unnecessary for two reasons. First, the court mistakenly believed that due to “statutory guidelines” the case “needs to be tried this week.” We presume that the “statutory guidelines” to which court was referring was section 394.916(1), Florida Statutes (2009), which states: “Within 30 days after the determination of probable cause, the court shall conduct a trial to determine whether the person is a sexually violent predator.” However, section 394.916(1) no longer sets the date by which trial is to commence. On July 9, 2009, our supreme court adopted the Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators. In re Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, 13 So.3d 1025, 1027-28 (Fla.2009). Among those rules was rule 4.240(a), which states, in pertinent part: “The trial to determine if the respondent is a sexually violent predator shall be commenced within 30 days after the summons has been returned served and filed with the clerk of the court.” (emphasis added). Because rule 4.240 conflicts with section 394.916(1) as to the date by which trial is to commence, the rule controls. See Massey v. David, 979 So.2d 931, 937 (Fla.2008) (where the supreme court promulgates rules which relate to practice and procedure, and a statute provides a contrary practice or procedure, the rule controls to the extent of the conflict). Applying rule 4.240 here, the thirtieth day after the summons was served and filed was Saturday, October 24, 2009, meaning that the rule did not require the circuit court to commence trial until Monday, October 26, 2009. See Fla. R. Civ. P.-S.V.P. 4.090(a) (2009) (“The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday.”). Thus, the court could have maintained the original October 19, 2009 trial date.

Second, the time periods set forth in the Jimmy Ryce Act and the new rules of procedure are unrelated to the constitutional right to a speedy trial. Under both the Act and the rules, a court can continue a trial “on its own motion in the interests of justice, when the person will not be substantially prejudiced.” § 394.916(2), Fla. Stat. (2009); Fla. R. Civ. P.-S.V.P. 4.260 (2009). Thus, rather than asking the appellant to waive the time period for trial, the court simply could have continued the trial on its own motion to give the appellant the time originally allowed to him to prepare for trial.

Based on the foregoing, we reverse the final judgment committing the appellant as a sexually violent predator and remand for a new trial on the state’s petition. Consistent with rule 4.240(a), we direct the circuit court to conduct a status hearing within five days after our mandate issues. The trial to determine if the appellant is a sexually violent predator shall be commenced within thirty days after our mandate issues, unless that period is waived or continued pursuant to the new rules of civil procedure for involuntary commitment of sexually violent predators. For the circuit court’s and the parties’ guidance in the new trial, we find that points two, three, and four which the appellant has raised in this appeal are without merit.

Reversed and remanded.

TAYLOR, J., and PEGG, ROBERT L., Associate Judge concur.


text:
    STATE of Florida, Appellant, v. Carolina LOPEZ, Appellee.
    No. 4D10-3401.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellant.
    A. Randall Haas, Fort Lauderdale, for appellee.
   GERBER, J.

The state appeals the circuit court’s order granting the defendant’s motion to suppress. The defendant’s motion raised two arguments: (1) the police did not have probable cause to arrest her, and thus any search of her person was incident to an unlawful arrest; and (2) the search of her person was otherwise illegal absent a search warrant. The circuit court granted the motion pursuant to the second argument, finding that although the police had reasonable suspicion to detain the defendant, the police should have obtained a warrant for the search of her person.

We conclude that the circuit court erred in granting the motion based on the second argument. If the arrest was lawful, then the police were permitted to search the defendant incident to the lawful arrest without a warrant. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (“Among the exceptions to the warrant requirement is a search incident to a lawful arrest.”).

However, we agree with the defendant’s first argument that the police did not have probable cause to arrest her, and thus any search of her person was incident to an unlawful arrest. See United States v. Di Re, 332 U.S. 581, 593, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (arrest of the defendant could not be justified based on the defendant’s presence in an automobile with a suspect where the informant did not point out the defendant as a suspect and the police had no information indicating that the defendant heard or took part in any conversation relating to the crime).

Because the circuit court’s decision to grant the motion was right, but for the wrong reason, we affirm. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (“‘[E]ven though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling.’ ”) (citation and emphasis omitted).

Affirmed.

TAYLOR, J., and PEGG, ROBERT L., Associate Judge, concur.


author: DAMOORGIAN, J.

text:
    Rolando BARRUETA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2084.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Defendant, Rolando Barrueta, appeals the revocation of his probation and his judgment and sentence on Count I — trafficking in an amount of 400 grams or more of cocaine, and Count II — conspiracy to traffic in an amount of 400 grams or more of cocaine.

On appeal, Barrueta first argues that the trial court erred in denying his motion to dismiss the allegations of probation violation. Second, he avers that the trial court erred in sentencing him on Count II. Third, Barrueta contends that the trial court failed to enter a written order accurately reflecting its findings that he violated his probation. As to this third point, while Barrueta acknowledges that the court’s findings are reflected in the court status sheet, he avers that with respect to the first violation charged, the status sheet does not indicate that he was found guilty of only the lesser violation of possession of cocaine in excess of ten grams and not the more serious violation of armed trafficking of cocaine originally alleged in the violation of probation warrant.

Finding no merit to Barrueta’s first argument, we affirm without discussion the revocation of probation and the judgment and sentence on Count I — trafficking in cocaine. However, as to Count II, Barrue-ta is correct that the warrant did not allege a violation of probation as to Count II. Therefore, we reverse the trial court’s revocation of probation and his judgment and sentence on Count II — conspiracy to traffic. See Baker v. State, 760 So.2d 1115, 1116 (Fla. 4th DCA 2000) (holding that trial court erred in revoking community control where “affidavit and warrant appearing in the record do not charge the substantive violation” for which defendant’s probation was revoked); see also Howard v. State, 888 So.2d 879, 880 (Fla. 4th DCA 2004); Nagel v. State, 758 So.2d 1206, 1208 (Fla. 4th DCA 2000). We also remand with directions for the trial court to enter a formal written order of revocation of probation in accordance with Florida Rule of Criminal Procedure 3.995, specifying which allegations Barrueta was found guilty of, including lesser violations, and which allegations were dismissed. See Green v. State, 23 So.3d 820, 821 (Fla. 4th DCA 2009) (affirming revocation, but remanding for entry of a written order of revocation).

Affirmed in Part, Reversed in Part and Remanded.

MAY and CONNER, JJ., concur.

      . Barrueta was charged with five violations of probation in the warrant. The status sheet reflects that Barrueta was found guilty of allegations 1, 3 & 4, but allegations 2 & 5 were dismissed. It does not specify that Barrueta was found guilty of a lesser violation on the first allegation in the warrant.

      . The State concedes that the judgment and sentence on Count II is in error.


author: ROTHENBERG, J.

text:
    Terry Lee BURROWS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-37.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Terry Lee Burrows, appeals from convictions and sentences for the attempted second-degree murder of Lisa Bynum (“Bynum” or “J.E.’s mother”) and the child abuse of J.E. We reverse the defendant’s conviction for attempted second-degree murder, but affirm his conviction and sentence for child abuse.

The defendant was charged with the attempted first-degree murder of Bynum (Count 1), and the child abuse of J.E. in violation of section 827.03(l)(b), Florida Statutes (2008) (Count 2). At trial, the evidence demonstrated as follows. After Bynum and the defendant argued, Bynum went into her bedroom and got into bed with two of her children who were sleeping. The defendant entered the bedroom and punched Bynum in the face, and she began to scream. As Bynum screamed, the defendant continued to punch her. Bynum’s son, J.E., who was then nine years old and awake, pleaded with the defendant to stop. The defendant ignored J.E.’s plea, and in J.E.’s presence, stabbed Bynum multiple times. Bynum, who was eventually able to escape, ran to a neighbor’s house, and J.E. ran outside crying and screaming. Bynum’s teenage daughter, who was outside when the incident occurred, then ran inside to get her youngest brother who was still sleeping.

The defense moved for a judgment of acquittal as to the child abuse charge, which the trial court denied. Without objection, the trial court instructed the jury as to the charged offense of attempted first-degree murder, and the lesser included offenses of attempted second-degree murder and attempted manslaughter by act. As to attempted second-degree murder, the jury was instructed that the State was required to prove the defendant “intentionally committed an act which would have resulted in the death of Lisa Bynum except that someone prevented [the defendant] from killing Lisa Bynum or he failed to do so.” As to attempted voluntary manslaughter, the trial court, without objection, instructed the jury in pertinent part as follows:

To prove the crime of attempted voluntary manslaughter, as a lesser included offense of Count 1, the State must prove the following elements beyond a reasonable doubt:
Terry Burrows committed an act which was intended to cause the death of Lisa Bynum and would have resulted in the death of Lisa Bynum except that someone prevented Terry Burrows from killing Lisa Bynum or he failed to do so.
In order to convict of attempted voluntary manslaughter it is not necessary for the State to prove that the defendant had a premeditated intent to cause death?

The jury found the defendant guilty of attempted second-degree murder and child abuse. This appeal followed.

The defendant contends the trial court fundamentally erred by giving the standard jury instruction for attempted manslaughter by act, which erroneously required the jury to find that the defendant “committed an act which was intended to cause the death” of the victim. Based on this Court’s decisions in Bass v. State, 45 So.3d 970 (Fla. 3d DCA 2010), and Coiscou v. State, 43 So.3d 123 (Fla. 3d DCA 2010), we agree and, therefore, reverse the defendant’s conviction and sentence for attempted second-degree murder and remand for a new trial on that charge. However, we certify direct conflict with the Fourth District’s decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), which holds that the instruction does not constitute fundamental error.

Next, the defendant contends the trial court erred by denying his motion for judgment of acquittal as to the child abuse charge, arguing that the State failed to present any evidence regarding the “mental injury” element of the offense. In support of his argument, the defendant relies on (1) the lack of testimony reflecting that J.E. suffered an actual mental injury as a result of witnessing his mother being brutally attacked by the defendant, and (2) J.E.’s older sister’s testimony reflecting that J.E. is a “normal boy” who is doing well in school. We reject the defendant’s contention.

The defendant was charged with child abuse pursuant to section 827.03(l)(b), which provides in relevant part: “(1) ‘Child abuse’ means: ... (b) An intentional act that could reasonably be expected to result in physical or mental injury to a child.... ” (Emphasis added). Although section 827.03 does not define the term “mental injury,” in DuFresne v. State, 826 So.2d 272, 278-79 (Fla.2002), the Florida Supreme Court held that the statute “is not unconstitutionally vague because the term ‘mental injury’ is adequately defined in another related statute” — Chapter 39, which is titled “Proceedings Relating to Children.” Section 39.01(42), Florida Statutes (2008), defines “mental injury” as “an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior.”

First, we note that the defendant now argues that the State failed to introduce the very evidence he successfully had excluded. During trial, defense counsel objected when the State asked J.E.’s mother whether J.E. had gone to counseling, and the trial court sustained the objection. Second, the defendant’s argument is erroneous as a matter of law. Pursuant to section 827.03(l)(b), the State was not required to prove actual mental injury to J.E., but only that the defendant’s intentional act “could reasonably be expected to result in ... mental injury” to J.E. (emphasis added); see Zerbe v. State, 944 So.2d 1189, 1193 (Fla. 4th DCA 2006) (“The offense of child abuse under subsection (b) [of section 827.03(1) ] does not require proof of actual injury; rather, the offense includes any act that is done intentionally that could reasonably be expected to cause mental injury.”); Clines v. State, 765 So.2d 947, 948 (Fla. 5th DCA 2000) (“As amended, the statutory offense of child abuse is no longer limited to actual physical or mental injury inflicted on a child. It now includes ‘any intentional act that could reasonably be expected to result in physical or mental injury to a child.’ ”).

Here, it is undisputed that J.E. witnessed his mother being punched by the defendant, and when he pleaded with the defendant to stop, the defendant continued to attack J.E.’s mother by stabbing her multiple times with a knife. Following the bloody attack, which J.E. fully witnessed, J.E. ran out of the house crying and screaming. Based on this evidence, there is no doubt that the State proved that the defendant’s intentional act “could reasonably be expected to result in mental injury” to J.E. Cf. Baker v. State, 980 So.2d 616, 616-19 (Fla. 4th DCA 2008) (reversing denial of judgment of acquittal on charge of child abuse filed under section 827.03(l)(b), where evidence showed that Baker rubbed child’s stomach; kissed child on cheeks, jaw, and forehead; and during incident, the child was crying and upset because he did not know Baker). The fact that J.E.’s sister testified that J.E. is presently doing well in school is not dispositive. Doing well in school does not negate the finding that the acts J.E. witnessed — his mother being punched and then stabbed multiple times while he lay next to her— could reasonably be expected to result in mental injury regardless of when the manifestations of the injury become apparent. Accordingly, we affirm the trial court’s denial of the defendant’s motion for judgment of acquittal as to child abuse.

Affirmed in part; reversed in part and remanded for a new trial; conflict certified.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. C.W., a juvenile, Appellee.
    No. 3D10-2219.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Michael J. Skiscim, Jr. and Emily G. Tompkins, Certified Legal Interns, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

The state appeals a trial court order transferring jurisdiction of this cause, in which the state direct-filed an information against the appellee, to the juvenile division. We reverse based on our holding that the state attorney had discretion to direct-file an information in adult court, notwithstanding the fact that the appellee was seventeen years old.

Section 985.557(b), Florida Statutes (2010), provides that, “[w]ith respect to any child who was 16 or 17 years of age at the time the alleged offense was committed, the state attorney may file an information when in the state attorney’s judgment and discretion the public interest requires that adult sanctions be considered or imposed.” The charges against the juvenile included a felony criminal mischief count. Section 985.557(6) affords the prosecutor the discretion to direct-file an information against this appellee. The appellee had no absolute right to be processed and charged as a juvenile. See Reyna v. State, 866 So.2d 214 (Fla. 3d DCA 2004) (finding that juvenile has no equal protection right to be processed in juvenile, rather than adult, court); Brazill v. State, 845 So.2d 282, 287 (Fla. 4th DCA 2003) (holding that children do not have absolute right to be tried in juvenile system). In this case, the information was properly filed and the trial court erred in transferring the cause that was otherwise properly before it.

Reversed and remanded.

      . A misdemeanor charge against a juvenile may not be direct-filed "unless the child has had at least two previous adjudications or adjudications withheld for delinquent acts, one of which involved an offense classified as a felony under state law.” § 985.557(b), Fla. Stat. (2010).


text:
    D.M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES and Guardian ad Litem Program, Appellees.
    No. 3D11-37.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.

      Herscher & Herscher and llene Herscher, Coral Gables, for appellant.
    Karla Perkins, Miami, for appellee Department of Children & Family Services; Hillary S. Kambour, for appellee Guardian ad Litem Program.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

The mother, D.M., appeals an order adjudicating her daughter, A.B., dependent. We affirm the order without comment. However, we remand for the trial court to correct the order to reflect that the dependency adjudication of A.B. was based on the physical harm inflicted on D.O., A.B.’s half-sister, and the previous dependency adjudication of D.O., based thereon.

In the order on appeal, the trial court mistakenly referred to the neglect of D.O. and the adjudication of dependency based thereon. The record, however, shows that the mother consented to adjudicating D.O. dependent for physical abuse based on discipline and punishment that placed D.O. at prospective risk of harm.

As properly conceded by the Department of Children and Family Services (“Department”), the order before us must be corrected because the dependency petition concerning A.B. did not allege neglect, nor did the evidence at the dependency hearing address the neglect of D.O. Instead, the petition alleged that A.B. should be found dependent as to her mother because A.B. was prospectively at significant risk of harm based on the mother’s physical abuse of D.O. and the previous dependency adjudication of D.O. for that harm. See § 39.01(15)(f), (32), Fla. Stat. (2009). At the hearing, the mother’s physical and emotional harm of D.O, the previous adjudication of dependency for that harm, and the prospective risk of such harm to A.B. was the subject of counsel’s argument, the witnesses’ testimony, the evidence presented, and the trial court’s oral ruling at the end of the hearing during which the court referred to the mother’s “consent language” in the dependency order as to D.O. and “all the circumstances surrounding the dependency” of D.O.

Based on this record, the trial court relied on the correct law, made sufficient findings concerning the physical harm inflicted on D.O. by her mother, and the previous adjudication of dependency of D.O. for that harm and properly concluded that the Department had proven by a preponderance of the evidence that A.B. was at prospective risk of imminent harm. Accordingly, the trial court’s reference to the neglect, and the adjudication of dependency of D.O. based thereon, rather than to the physical harm, and the dependency adjudication of D.O., on that basis, as to her mother, does not require reversal. See C.T. v. Dep’t of Children & Families, 22 So.3d 852 (Fla. 3d DCA 2009) (holding that trial court error was harmless in stating that termination was automatic upon proof of abuse of sibling where court also addressed proper standard and the record supports the judgment); cf. A.N.B. v. Dep’t of Children & Families, 54 So.3d 1049 (Fla. 5th DCA 2011) (holding that trial court properly found child dependent on two grounds even though findings on other grounds were insufficient). We, therefore, affirm the order and remand to the trial court for correction of the order.

Affirmed and remanded with directions.

      . The record shows that D.O. was adjudicated dependent as to J.O., her father, for neglect and prospective risk of harm. See § 39.01(15)(f), (32), (44), Fla. Stat. (2009).


text:
    In re COMMITMENT OF Frank RICHARDS. Frank Richards, Petitioner, v. State of Florida, Respondent.
    No. 2D10-6132.
    District Court of Appeal of Florida, Second District.
    June 17, 2011.

      Jeanine L. Cohen, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Frank Richards, a pretrial detainee under the Involuntary Civil Commitment of Sexually Violent Predators Act, filed a petition for writ of prohibition, certiorari, or habeas corpus seeking his immediate release from pretrial detention and dismissal of the petition for involuntary civil commitment without prejudice because of the State’s failure to bring him to trial within thirty days from the date of the probable cause determination as required by section 394.916(1), Florida Statutes (2009). By order, we treated the petition as a petition for writ of habeas corpus. We granted the petition, ordered that Richards be immediately released from detention, and dismissed the commitment petition without prejudice. This opinion follows.

The State filed the commitment petition on January 20, 2010. On that same day, the circuit court found that probable cause existed to believe that Richards is a sexually violent predator and ordered that he be involuntarily detained while simultaneously appointing him an attorney. On January 21, the State issued a summons to Richards as required by Florida Rule of Civil Procedure for Involuntary Commitment of Sexual Predators 4.070(a), which advised him that he had ten calendar days from the date of service to file an answer to the petition. On March 31, 2010, Richards, through appointed counsel, filed a motion to dismiss the commitment petition and for immediate release. The basis for the requested relief was twofold: that the circuit court did not conduct the mandatory status hearing within five days from the date of the service of the summons as required by Florida Rule of Civil Procedure for Involuntary Commitment of Sexual Predators 4.240(a), and that the State did not bring Richards to trial within thirty days from the probable cause determination as required by section 394.916(1).

At the April 1, 2010, hearing on the motion to dismiss, counsel advised: “It’s not necessary for the court to reach the five-day issue [regarding the setting of the status hearing] because we already have the thirty-day issue violated.” Counsel did, however, argue that Richards was entitled to immediate release and to have the commitment petition dismissed without prejudice because he was not brought to trial within thirty days from date of the probable cause determination. The assistant state attorney advised the circuit court that she had received Richards’ answer to the commitment petition that very day. Following argument, the circuit judge orally denied the motion to dismiss, finding that the thirty-day period for bringing Richards to trial began to run from the date of the service of the answer to the commitment petition and not from the date of the probable cause determination. The circuit court also found that Richards was not prejudiced by the fact that a status hearing was not held within five days from the service of the summons because the purpose of the status hearing was to ensure that Richards was represented by counsel and counsel was appointed the day the probable cause determination was made.

Richards filed the present petition in this court on December 29, 2010. The State in its response to the petition argues that Richards waived the claims raised in the petition, relying on Boatman v. State, 39 So.3d 391 (Fla. 1st DCA 2010), review granted, 43 So.3d 690 (Fla.2010), and Kotin v. State, 927 So.2d 198 (Fla. 5th DCA 2006). In Boatman, within thirty days from the date of the determination that probable cause existed to believe that Boatman was a sexually violent predator, the circuit court granted the State’s motion for a continuance of the trial on the commitment petition. 39 So.3d at 393. The trial was held a little over three months after the probable cause determination. Id. at 392-93. Immediately prior to trial, Boatman moved to dismiss the commitment petition on the basis that he was not brought to trial within thirty days from the date of the probable cause determination as required by section 394.916(1). Id. at 393. On direct appeal from the order of civil commitment, Boatman contended that the trial court erred in denying his motion to dismiss the commitment petition. Id. The First District concluded that the circuit court abused its discretion in granting the State’s motion for a continuance and that the proper remedy where the thirty-day deadline was not validly extended would have been to release Boatman and dismiss the commitment petition without prejudice. Id. at 394. The court held, however, that the issue was waived where Boatman waited until the appeal from the order of commitment to raise it. Id. at 395. The court stated:

We believe that, to further the legislature’s intent that such trials be held promptly, the proper remedy in such cases is for the respondent [to the commitment petition] to file a motion to dismiss the petition as soon as the thirty-day deadline has expired, and to seek immediate relief by habeas corpus if the motion is denied.

Id.

In the present case, Richards did not wait until the direct appeal of the order of commitment to raise the issue that the State failed to bring him to trial within thirty days from the date of the probable cause determination. An order of commitment has not been entered in this case. Richards filed the petition for writ of habe-as corpus prior to the date of the trial on the commitment petition, and our order dismissing the petition without prejudice and requiring Richards’ immediate release issued prior to the trial date. Florida Rule of Appellate Procedure 9.100(c) does not require that a petition for writ of habe-as corpus be filed within a certain number of days from the rendition of the order to be reviewed. This court is reluctant to impose such a requirement for review of orders in civil commitment proceedings. We therefore conclude that Richards did not waive the issues raised in the petition for writ of habeas corpus by failing to file the petition “immediately” following the circuit court’s denial of his motion to dismiss.

The Kolin court, citing Osborne v. State, 907 So.2d 505 (Fla.2005), noted that the requirement under section 394.916(1) that trial commence within thirty days after the circuit court determined that probable cause existed to believe that a detainee was a sexually violent predator is not jurisdictional and can be waived. 927 So.2d at 199-200. The court held that Kolin waived the thirty-day deadline where he elected not to file a timely motion to dismiss and he failed to raise the issue in his answer to the commitment petition. Id. at 200. In Kolin, after the entry of the probable cause determination, the circuit court set an initial trial date twenty-eight days after the expiration of the thirty-day deadline for bringing Kolin to trial. Id. at 199. Although aware of the issue, Kolin chose not to file a motion to dismiss based on the violation of the deadline. Id. Instead, on the day trial was set, Kolin moved to continue the case, asserting the need for more preparation time. Id. For more than three years, he filed additional motions to continue as each trial date approached. Id. Finally, on the day of trial, Kolin filed a motion to dismiss the commitment petition for a violation of section 394.916(1). Id. Thus, Kolin did not move to dismiss the commitment petition until more than three years after the thirty-day period had run and not before he had filed four motions to continue the trial date. Id.

In the present case, the commitment petition was filed on January 20, 2010, with the probable cause determination being made on that same date. The motion to dismiss for violation of section 394.916(1) was filed on March 31, 2010, which was a little more than two months after the probable cause determination. At that time, trial on the commitment petition had not been set, Richards had not filed an answer or requested a continuance, and the circuit court had not even conducted the mandatory status hearing required by rule 4.240 to determine whether Richards was entitled to appointed counsel. Richards did not request a continuance of the trial date until after the circuit court denied the motion to dismiss. The facts of the present case are significantly different from the facts of Kolin, and the holding of Kolin does not control in the present case.

In the petition for writ of habeas corpus, Richards contends that he should be released and the commitment petition be dismissed because the circuit court did not conduct a status hearing within five days from the service of the summons as required by rule 4.240(a). We conclude that this issue was waived where Richards’ counsel, at the hearing on the motion to dismiss, advised the circuit court that “[fit’s not necessary for the court to reach the five-day issue because we already have the thirty-day issue violated.” Regardless, there is no authority whatsoever for the proposition that the commitment petition should be dismissed without prejudice and the detainee released if a status hearing is not conducted within five days from the date of the service of the summons.

Florida Rule of Civil Procedure for Involuntary Commitment of Sexually Violent Predators 4.200(a) directs the trial court to enter an order appointing counsel upon entry of an order finding probable cause. Rule 4.070(a) states that the clerk of circuit court shall issue a summons, a copy of the- commitment petition, and a copy of the order finding probable cause to the detainee upon receipt of the trial court’s order finding probable cause. Rule 4.240(a) states that the trial court shall conduct a status hearing within five days after the service of the summons to determine if the detainee is entitled to court appointed counsel. The rule states that the detainee should be given a reasonable time to secure private counsel if he so requests and a Faretta inquiry should be conducted if he elects to represent himself. Thus, the rules contemplate that the detainee be appointed counsel prior to the status hearing. The purpose of the status hearing is to finalize the appointment of counsel, to allow the detainee to hire private counsel, or to allow the detainee to represent himself. In the present case, counsel was appointed at the time of the probable cause determination and counsel still represents Richards to date. Under such circumstances we would not consider that the failure to hold the status hearing in the five-day period set forth in rule 4.240(a) requires that the commitment petition be dismissed without prejudice. We would note, however, that the State and the circuit court should strictly comply with the time periods set forth in the Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators and that there could be a situation in which the failure to timely conduct the status hearing may interfere with the right of the detainee to be brought to trial within thirty days from the date of the probable cause determination if it impedes the detainee’s preparation for trial.

Richards alternatively argues that the commitment petition should be dismissed without prejudice and that he should be released because the State did not bring him to trial within thirty days from the date of the probable cause determination as required by section 894.916(1). The supreme court in Osborne held that, absent a demonstration of prejudice sufficient to require dismissal of the commitment petition with prejudice, a violation of the thirty-day time period for bringing the case to trial requires release of the detainee and dismissal of the commitment petition without prejudice. 907 So.2d at 508. Richards does not contend that the petition should be dismissed with prejudice, and the facts in this case would not support such an argument. The State, in its response to the petition for writ of habeas corpus does not dispute that Richards was not brought to trial within thirty days from the date of the probable cause determination, but rather contends that the circuit court correctly ruled that the thirty-day period does not begin to run until the detainee files an answer to the commitment petition because the cause is not “at issue” until such time.

We conclude, however, that the thirty-day period begins to run from the date of the probable cause determination rather than the date the detainee files an answer to the commitment petition. The supreme court, in In re Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, 13 So.3d 1025 (Fla.2009), could have modified the proposed rules by adding a proviso that the thirty-day period begins to run only upon the filing of an answer, but the court did not do so. Such a rule would be in direct conflict with the intent of the legislature as reflected in section 394.916(1) that the thirty-day period commence upon the date of the probable cause determination.

Rule 4.070(a) states that, upon receipt of an order finding probable cause, the clerk of circuit court shall issue a summons to the detained individual. The summons directs the individual to file an answer to the commitment petition within ten days from the date of service of the summons. The rule further states that the finding of probable cause “shall not become effective until the summons is returned served and filed with the clerk of court.” Rule 4.070(b) requires that the person in charge of the facility where the individual is confined “shall make a return on the summons within 24 hours after making service, by electronically confirming to the state attorney that service has been made.” The state attorney is then directed to file a printed copy of the return along with the summons with the clerk on the first business day after receiving it. Rule 4.240(a) states that trial is to be held within thirty days after the summons has been returned served and filed with the clerk, which is the date the probable cause determination becomes effective pursuant to rule 4.070(a). Even taking into account weekends and holidays, the served summons must be returned and filed with the clerk within a few days of service at the most and certainly fewer than ten days after the service of the summons. Because the detainee has ten days from the service of the summons to file an answer and the summons must be returned and filed with the clerk before then, the thirty-day period for bringing the detainee to trial starts running before the answer is due. Accordingly, under the rules as well as the statute, it is not the filing of the answer to the commitment petition that starts the thirty-day period running; rather, that period is activated by the circuit court’s determination that probable cause exists to believe the detainee is a sexually violent predator.

We must also consider constitutional due process and whether the right to trial within thirty days from the date of the probable cause determination is a substantive right. In State v. Goode, 830 So.2d 817 (Fla.2002), the supreme court, in holding that the thirty-day period was mandatory, stated:

Indefinite commitments under the Ryce Act clearly do not present situations where compliance is a matter of convenience or inconsequential matters are at issue. To the contrary, under the Ryce Act, detainees could literally be committed indefinitely for the rest of their lives. The U.S. Supreme Court has stated that even in civil commitments “[f|reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 487 (1992). “It is clear that ‘commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.’ ” Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323, (1979)). Obviously these commitments involve serious substantive rights with constitutional implications.

Id. at 825. The court, after noting that the Jimmy Ryce Act was based on Kansas’s similar statutory scheme, concluded:

[B]ecause both the Kansas and Florida Legislatures were concerned about the patent constitutional issues implicit in any scheme of involuntary and indefinite detention to be imposed in addition to specific criminal penalties imposed for the same underlying conduct, it is apparent that they sought to counter those concerns and temper the drastic effects of the indefinite detention scheme by the .imposition of rigid time constraints set out in explicit language in the acts.

Id. at 822. The court went on to state that the “Legislature’s interest in imposing rigid time constraints is expressly reflected in the language of section 394.916(1), which specifically states that the court ‘shall’ conduct a trial within thirty days after the determination of probable cause.” Id. at 823. Thus, the supreme court in Goode determined that the legislature provided the detainee with a substantive right to have the trial conducted within thirty days from the probable cause determination. We conclude therefore that, the filing of, or failure to file, an answer to the commitment petition does not affect that substantive right provided by the legislature.

Accordingly, the petition for writ of ha-beas corpus is granted.

WHATLEY, KELLY, and CRENSHAW, JJ„ Concur.

      . The Involuntary Civil Commitment of Sexually Violent Predators Act, sections 394.910-.932, Florida Statutes (2009), is also known as the Jimmy Ryce Act.

      . A petition for writ of habeas corpus is a proper vehicle to challenge the failure of the State to bring a Jimmy Ryce detainee to trial • within thirty days from the probable cause determination. See Ennis v. Regier, 869 So.2d 701, 703 (Fla. 2d DCA 2004) (holding that "Ennis’s contention that the State did not comply with the time requirements of the Ryce Act does raise an issue that is properly the subject of a habeas petition”); see also Boatman v. State, 39 So.3d 391, 395 (Fla. 1st DCA 2010), review granted, 43 So.3d 690 (Fla. 2010).

      . The attachments to the State's response to the petition for writ of habeas corpus showed that trial was set for February 15, 2011. This court’s order dismissing the commitment petition without prejudice was entered on January 28, 2010.

      . The Kolin court did not indicate the date the answer was filed in that case. The Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators were effective July 9, 2009. See In re Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, 13 So.3d 1025 (Fla.2009). Kolin issued over three years pri- or to the effective date of the rules. The Kolin court, in holding that Kolin's failure to raise the violation of the thirty-day period in the answer to the commitment petition waived that issue, cited to the Florida Rules of Civil Procedure. Rule 4.070(a) states that, upon receipt of an order finding probable cause, the clerk of circuit court shall issue a summons to the detainee directing him to file an answer to the commitment petition within ten days from the date of service of the summons. Rule 4.240(a) states that trial is to be held within thirty days from the date the summons has been returned served and filed with the clerk. Thus, under the rules, the detainee, in a timely filed answer, could never assert as a defense the fact that trial was not commenced within the thirty-day period.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: BLACK, Judge.

text:
    Loida CORAL as Personal Representative of the Estate of Wilfredo Carlitos Coral, Deceased, Appellant, v. GARRARD CRANE SERVICE, INC., a Florida Profit Corporation, and Garrard Carpentry, Inc., a Florida Profit Corporation, Appellees.
    No. 2D10-3153.
    District Court of Appeal of Florida, Second District.
    June 17, 2011.
    Greg Abaray and William L. Allen, IV, of Allen & Abaray, P.A., Lakeland; Michael W. Blanton, Leawood, Kansas and Robert C. Sullivan and Daniel L. Allen of Sullivan, Bautista, Morgan, Allen & Chronic, LLC, Kansas City, Missouri, for Appellant.

      Robert L. Blank and William P. Keith of Rumberger, Kirk & Caldwell, P.A., Tampa, for Appellee Garrard Carpentry, Inc., a Florida Profit Corporation.
    No appearance for Appellee Garrard Crane Service, Inc., a Florida Profit Corporation.
   BLACK, Judge.

Loida Coral, as personal representative for the estate of Wilfredo Carlitos Coral, challenges the trial court’s order granting final summary judgment in favor of Gar-rard Carpentry, Inc. (Carpentry), and Gar-rard Crane Service, Inc. (Crane). Because we cannot determine whether all of the factual issues in Ms. Coral’s complaint are resolved and because there remain disputed issues of fact regarding Carpentry and Crane’s entitlement to workers’ compensation immunity, we reverse and remand for further proceedings.

I. Background Facts

Ms. Coral filed this wrongful death action after her husband suffered fatal injuries while repairing a crane. She claimed that the events surrounding her husband’s death involved three construction-related companies, Carpentry, Crane, and Garrard Tractor Service, Inc. (Tractor). Louis Garrard, V, was the sole owner of all three companies.

Prior to Mr. Coral’s death, Carpentry leased a crane from Altec Capital Services, LLC (Altec), and was using it for a project involving the placement of trusses. A pipe on the crane malfunctioned, and the crane was brought to Tractor’s garage for repairs. Mr. Coral was a crane mechanic employed by First Financial Employee Leasing, Inc. (First Financial), and leased to Tractor for the repairs. First Financial is a company that leases employees to clients but secures workers’ compensation coverage and maintains the employee on its payroll. The employee leasing agreement that Mr. Coral signed included a provision that stated:

In recognition of the fact that any work related injuries which might be sustained by me are covered by state worker’s compensation statutes, and to avoid the circumvention of such state statutes which may result from suits against the customers or clients of First Financial or against First Financial based on the same injury or injuries, and to the extent permitted by law, I hereby waive and forever release any rights I might have to make claims or bring suit against any Client or customer of First Financial or against First Financial for damages based upon injuries which are covered under such worker’s compensation statutes....

When the crane operator pulled the crane into Tractor’s garage, he checked with Mr. Coral to confirm that he did not need to relocate the crane for the repairs, and Mr. Coral indicated that the location was fine. The operator then clocked out and left. After Mr. Coral finished repairing the crane, he got into the crane to make sure it was functioning properly. Although he was not authorized to operate the crane, Mr. Coral operated the boom on the crane without first setting the outriggers, and the crane tipped over on him, killing him.

Ms. Coral filed her wrongful death claim against Terex Corporation (Terex), the company that built the crane, and Hydraulic Machinery, Inc., a Florida company that sold the crane. For a little over a year, the litigation was solely a products liability suit. However, Ms. Coral was granted leave to amend her complaint to include sister corporations of Terex and to include Tractor, Carpentry, and Crane. Ms. Coral settled her products liability claims with the Terex corporations and with Hydraulic Machinery, Inc., but she reserved the right to continue with her wrongful death claim against Tractor, Carpentry, and Crane.

In her 139-page amended complaint, Ms. Coral contended that Tractor, Carpentry, and Crane purchased the crane from Hydraulic Machinery, Inc., and were the owners of the crane on the date of Mr. Coral’s death. Based on her allegation of ownership, it appears the claims Ms. Coral asserted against the three companies related to products liability; however, any other legal basis of liability against the companies is unclear.

Tractor, Carpentry, and Crane’s answer denied all allegations in the complaint. The companies also asserted affirmative defenses. Tractor contended that it was immune from tort liability because it paid workers’ compensation benefits on behalf of the decedent. Carpentry and Crane claimed that they neither owned nor leased the crane and were not liable for its operation. They also asserted that they never employed Mr. Coral or owed him a duty of care.

Ms. Coral voluntarily dismissed her claim against Tractor, leaving pending claims against only Carpentry and Crane. Upon proper motions, the court separately granted Carpentry and Crane leave to amend their original answer. They filed separate amended answers, asserting numerous, identical affirmative defenses. The answers maintained that Ms. Coral’s complaint failed to state a cause of action against either company. Further, they asserted that the crane was subject to unforeseeable use by Mr. Coral and that he operated the crane in an unsafe manner. The answers alleged that Ms. Coral’s claims were barred by the sophisticated user doctrine and workers’ compensation immunity. Carpentry and Crane also asserted that Mr. Coral was their borrowed servant, and thus, they were immune from liability under the borrowed servant doctrine. Finally, they contended that Mr. Coral waived and released his right to bring suit against them.

Carpentry filed its motion for summary judgment based on its affirmative defenses. Carpentry asserted that Ms. Coral was barred from bringing the lawsuit because she received workers’ compensation benefits. The foundation for each of the arguments in the motion was that Carpentry and Tractor were closely related and singularly owned. The motion asserted that summary judgment was proper because (1) Mr. Coral waived any right to a claim in his employee agreement; (2) Carpentry was entitled to workers’ compensation immunity under either the common law borrowed servant doctrine or statutory special employment, pursuant to section 440.11(2), Florida Statutes (2005); (3) Carpentry was immune from liability under section 440.10(l)(b) because Tractor was a subcontractor of Carpentry at the time of Mr. Coral’s death; and (4) Carpentry was not liable under the dangerous instrumentality doctrine. Subsequently, Crane filed a notice requesting joinder to Carpentry’s motion for summary judgment.

Ms. Coral filed a motion in opposition to Carpentry’s motion, claiming that there were numerous excerpts from Mr. Gar-rard’s deposition testimony which refuted the claims that Carpentry and Tractor were interrelated companies, that Mr. Coral was employed by Carpentry, and that Mr. Coral was not under the direction of anyone employed at Carpentry. In the deposition testimony, Mr. Garrard acknowledged that the three companies he owned were completely separate entities. He stated that Mr. Coral was leased to Tractor, and he stated that no one at Carpentry was in a supervisory position over Mr. Coral.

A hearing was held on the motions, and the trial court made the following oral ruling:

I’m going to grant, because I think the statute toward the facts of this scenario fit within the statutory scheme. Granted — and I think the Plaintiff! ][is] — the Plaintiffs side [is] correct, there’s not exactly a hundred percent lineup on facts. But the critical facts that allow this case to be considered for comp immunity, I think, you know, obviously I’m ruling are undisputed.
And it is a situation where there was a leasing company that supplied employees to effectively three wholly owned companies that intermingled business. It’s my opinion that the statute was designed to provide — make sure there was compensation under worker[s’] comp for those employees, the statutory scheme. And as a result of that, I’m going to grant their motion.

Following the hearing, the trial court entered a written order granting Crane’s motion for joinder to Carpentry’s motion for summary judgment and granting summary judgment in favor of both Carpentry and Crane. The written order simply stated that there were no genuine issues of material fact and that Carpentry and Crane were entitled to judgment as a matter of law. It made no findings of fact or conclusions of law.

II. Standard of Review

The underlying purpose of a motion for summary judgment “is to determine whether any genuine issues of material fact exist for resolution by the trier of fact.” CSX Transp., Inc. v. Pasco Cnty., 660 So.2d 757, 758 (Fla. 2d DCA 1995) (citing A. & G. Aircraft Serv., Inc. v. Drake, 143 So.2d 703, 705 (Fla. 2d DCA 1962)). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains except questions of law.” Kratz v. Legac, 637 So.2d 29, 30 (Fla. 2d DCA 1994) (citing Moore v. Morris, 475 So.2d 666, 668 (Fla.1985)). The standard of review for an order granting summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “The party moving for summary judgment has the burden of showing the nonexistence of [a] genuine issue of material fact.” Richardson v. Wal-Mark Contracting Grp., LLC, 814 So.2d 534, 535 (Fla. 2d DCA 2002) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). “If the record reflects the existence of any genuine issue of material fact, or the possibility of an issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Christian v. Overstreet Paving Co., 679 So.2d 839, 840 (Fla. 2d DCA 1996) (citing Gomes v. Stevens, 548 So.2d 1163, 1164 (Fla. 2d DCA 1989)).

III. Analysis

After reviewing the voluminous record, we find there are unresolved issues that render summary judgment premature. First, this case is difficult to analyze because the second amended complaint does not allege a “short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Fla. R. Civ. P. 1.110(b). During oral argument, we assumed that Ms. Coral was alleging theories of liability similar to those discussed in Halifax Paving, Inc. v. Scott & Jobalia Construction Co., Inc., 565 So.2d 1346 (Fla.1990), and Sherrill v. Corbett Cranes Services, Inc., 656 So.2d 181 (Fla. 5th DCA 1995). Those are the theories discussed in the briefs. However, the second amended complaint intermingles concepts of products liability, negligence, malice, recklessness and intent into a document that is poorly pleaded and is not in compliance with the rules of procedure. In response to the second amended complaint, Carpentry and Crane asserted affirmative defenses based on negligence. Due to the lack of clarity in the second amended complaint, we cannot conclusively say that all factual issues are resolved and that Carpentry and Crane are entitled to judgment as a matter of law. On remand, the trial court would be well within its discretion to require Ms. Coral to file an amended pleading that would permit both the trial court and the defendants to determine what, if any, legal issue may be in factual dispute in this case.

Second, there are materially disputed facts. It is unclear what connection Carpentry and Crane have with Mr. Coral. When Carpentry and Crane initially filed their answer, they were claiming that they were separate entities from Tractor. However, in their amended answers they claim they are interrelated companies. The record clearly indicates that Carpentry leased the crane from Altec; however, any connection between Mr. Coral and Carpentry remains at issue. Moreover, Crane’s relationship to both the crane and Mr. Coral remains a disputed fact. At the summary judgment hearing, counsel indicated that Crane had operational control of the crane and that Tractor was servicing the crane at Crane’s request; however, Mr. Garrard’s deposition testimony and the documents included in the record indicate that Carpentry leased the crane and took it to Tractor for servicing.

One thing is clear, however. Ms. Coral introduced sufficient testimony from Mr. Garrard’s deposition to create factual issues regarding Carpentry and Crane’s claims that they were entitled to workers’ compensation immunity because they are interrelated with Tractor, they employed Mr. Coral, and Mr. Coral was under their direction. Therefore, there are genuinely disputed facts that must be resolved by the trial court before Carpentry and Crane are entitled to summary judgment under their affirmative defenses.

Reversed and remanded for further proceedings.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . In the trial court proceedings, Carpentry and Crane argued that Mr. Coral waived or released his right to bring a tort action against them. They asserted that they were clients of First Financial and that the language in the waiver applied to any client or customer of First Financial for any accident for which Mr. Coral received worker’s compensation benefits. We note that on remand, the trial court should consider whether the waiver is enforceable to the extent that it is broader than the statutory workers’ compensation immunity.