author: DAMOORGIAN, J.

text:
    Ellen RUSSO, an individual, Appellant, v. Leonard FINK and Marilyn Fink, individuals, Appellees.
    No. 4D11-2004.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      Andrew Douglas of Andrew Douglas, P.A., Plantation, for appellant.
    Lee H. Sehillinger and Pavel Kogan of the Law Office of Lee H. Sehillinger, P.A., Hollywood, for appellee Marilyn Fink.
   DAMOORGIAN, J.

Appellant, Ellen Russo, appeals a non-final order granting Marilyn Fink’s motion to dismiss for lack of personal jurisdiction. We affirm.

By way of background, Russo, a Florida resident, filed a complaint against Leonard Fink and Marilyn Fink, residents of Nevada. The complaint set forth counts for conversion, civil theft pursuant to section 772.11, Florida Statutes, breach of fiduciary duty, and civil conspiracy against the Finks. The count for breach of fiduciary duty was against Leonard Fink alone, whereas the other counts were against Leonard and Marilyn Fink. As a basis for these counts, it alleged that Russo and her brother, Leonard, opened and maintained two joint accounts in Broward County, Florida, which were funded by monies received as a gift from their father Irving Fink. The siblings were to use the money for the benefit of their father for the remainder of his life, and were to distribute the remainder to themselves equally upon his death. The complaint then alleged that Leonard Fink closed the Florida accounts and took the proceeds without the permission or knowledge of Ellen Russo or their father. It further alleged that Leonard’s wife, Marilyn, was aware of Leonard’s actions and encouraged him to obtain the funds. Upon Irving’s death, Russo made several verbal demands on Leonard for her equal share of the sum on deposit, as well as a written demand upon both Leonard and Marilyn.

In response to the complaint, Marilyn Fink filed a motion to dismiss for lack of personal jurisdiction. The gravamen of the motion was that the complaint failed to demonstrate minimum contacts with the State of Florida to enable jurisdiction over her, or allege that she committed any of the activities described in Florida’s long arm statute — section 48.193, Florida Statutes (2010). The motion was supported by an affidavit in which Marilyn Fink stated, in relevant part, that: (1) she had no knowledge of or involvement with the withdrawal of the funds in question or their use thereafter; (2) she had no business contacts with Florida during the relevant period in time; and (3) she denied committing any tortious act in Florida, specifically the alleged conversion, civil theft, and civil conspiracy.

Russo responded by submitting a memorandum of law in opposition to the motion and corresponding counter-affidavit, asserting that Marilyn Fink was subject to the court’s jurisdiction by way of her commission of the torts of conversion, civil theft, and civil conspiracy, causing injury to Russo in Florida. It explained that the amounts withdrawn by Leonard were deposited into an account jointly owned by Marilyn and Leonard Fink.

The trial court allowed limited discovery to be conducted on the issue of personal jurisdiction before ruling on the motion. After a hearing and the submission of additional memoranda by the parties to support their respective positions, the trial court entered an order granting Marilyn Fink’s motion to dismiss. Although the trial court determined that the complaint alleged sufficient facts to bring the action within Florida’s long-arm statute, it dismissed the complaint against Marilyn Fink because her contacts with Florida were insufficient to satisfy constitutional due process requirements. While we agree with the trial court’s conclusion, we hold that the basis for the dismissal was incorrect. Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

We review a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

Russo raises two issues on appeal relating to the second-prong of a personal jurisdiction analysis. However, we need not reach these two issues because we conclude the dismissal was proper under the first-prong of a personal jurisdiction analysis, i.e. the complaint failed to allege sufficient facts to bring the action within Florida’s long-arm statute.

In Joseph v. Chanin, 869 So.2d 738 (Fla. 4th DCA 2004), this Court recognized that:

Florida has established a two-prong test for determining jurisdiction over the person. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). The court must first determine whether the plaintiff alleged sufficient facts to comply with Florida’s long-arm statute, section 48.193, Florida Statutes (2001). Next, the court must determine if the defendant had sufficient minimum contacts with the State of Florida to satisfy due process.

Id. at 740. “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002).

Florida’s long-arm statute addresses both specific and general jurisdiction, granting specific jurisdiction over any person who commits a number of acts, including “[cjomitting a tortious act within this state.” § 48.193(l)(b), Fla. Stat. (2010). “[A] tort claim is deemed to have accrued where the last event necessary to make the defendant liable for the tort took place.” Merkin v. PCA Health Plans of Fla., Inc., 855 So.2d 137, 140 (Fla. 3d DCA 2003) (quoting Envases Venezolanos, S.A. v. Collazo, 559 So.2d 651, 652 (Fla. 3d DCA 1990)). Alternatively, in order for a court to have general jurisdiction over a defendant pursuant to section 48.193(2), Florida Statutes (2010), the defendant’s activity within Florida must be “substantial and not isolated activity,” which has been defined as “continuous and systematic.” See Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999)

With respect to the conversion, civil theft, and conspiracy counts, the amended complaint is devoid of allegations that Marilyn Fink committed any act or omission within Florida or agreed to any act with Leonard. Our review of the amended complaint leads us to conclude that the allegations failed to establish that Marilyn Fink committed the requisite tortious acts in Florida. The underlying allegations are based on the unilateral actions of Leonard Fink who was solely responsible for the withdrawal of his father’s funds from the joint account he maintained with Russo in Florida. Moreover, the complaint does not allege that Marilyn Fink took part in the withdrawal of the funds or that she was present in Florida when the act occurred.

Even assuming Marilyn Fink did play a role in controlling the funds after they left Florida, the relevant act for personal jurisdiction purposes with regard to the tort of conversion is the initial wrongful deprivation. See Merkin, 855 So.2d at 140 (holding that the tort of conversion accrues where a party exercises “wrongful dominion and control over the property to the detriment of the rights of its actual owner.”); Envases Venezolanos, S.A., 559 So.2d at 652 (Fla. 3d DCA 1990) (In the context of the depletion of a bank account in one jurisdiction and its transmission to another, that “wrongful act is necessarily deemed to have taken place where the defendant effects a withdrawal.... ”). Here, that deprivation took place in Florida without Marilyn Fink’s involvement as evidenced by the factual allegations in the complaint.

Turning to the count for civil theft, the applicable statute, section 772.11(1), Florida Statutes (2010), provides, in pertinent part,

Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts.

Under section 812.014, the only statutory section potentially applicable to Russo’s claims, a person “commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to ... [d]eprive the other person of a right to the property or a benefit from the property” or “appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.” § 812.014(l)(a)-(b), Fla. Stat. (2010). Here, again, the complaint did not allege Marilyn Fink’s actual removal of the monies from the Florida bank account. In fact, the complaint alleges that her husband was the one who removed the funds from the joint bank account he maintained with Russo in Florida. Marilyn Fink was not named on this account.

As for the conspiracy count, “[a] civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997) (citations omitted). Here, the general allegations of the complaint simply state that “[a]t all times material hereto, Marilyn Fink had knowledge of Leonard Fink’s actions in obtaining the full estate amount including Ellen Russo’s portion thereof and encouraged Leonard Fink to obtain such amount for their joint benefit.” In the conspiracy count itself, the complaint merely states that “Leonard Fink and Marilyn Fink conspired in concert with full knowledge of each other’s action[s] for the purpose of disp[ossess]ing Ellen Russo of her portion of the estate. ...” Notably, the complaint does not allege an agreement between Leonard and Marilyn, which is the gist of a conspiracy, merely that Marilyn had knowledge of what Leonard was doing. Because it never alleged that there was an agreement, it has failed to allege sufficient facts with respect to the conspiracy count.

As such, Russo failed to allege sufficient facts on the conversion, civil theft, and conspiracy counts to bring Marilyn Fink within the reach of the long-arm statute. Finally, a review of the record indicates that Marilyn Fink’s activities within Florida have not been “continuous and systematic” as required to subject her to the trial court’s general jurisdiction under section 48.193(2). See Two Worlds United v. Zylstra, 46 So.3d 1175, 1178 (Fla. 2d DCA 2010); Bafitis v. Ara, 815 So.2d 702, 703 (Fla. 3d DCA 2002).

Accordingly, we affirm the dismissal. The trial court should have dismissed the amended complaint as to Marilyn Fink without prejudice. See Henderson v. Elias, 56 So.3d 86, 90 (Fla. 4th DCA 2011) (holding that dismissal of a complaint for insufficient jurisdictional allegations should be without prejudice to amend) (citing World Class Yachts, Inc. v. Murphy, 731 So.2d 798, 800 (Fla. 4th DCA 1999)).

Affirmed.

WARNER and CONNER, JJ., concur.

      . Russo alleges that (i) the trial court erred in determining that Marilyn Fink did not maintain minimum contacts with Florida for the exercise of personal jurisdiction; and (ii) the trial court erred by failing to recognize Marilyn Fink's continuous and systematic ties to Florida.

      . We also note that Russo did not carry her burden to demonstrate a conspiracy after the complaint's allegations were contested by Marilyn Fink’s affidavit. Russo’s affidavit in rebuttal merely reiterated the same concluso-ry allegations contained in her complaint. Cf. Ferguson v. Estate of Campana, 47 So.3d 838, 842 (Fla. 3d DCA 2010) (conclusory assertions in a defendant’s affidavit are insufficient to contest personal jurisdiction).


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Dwayne MAYO, Appellant, v. Jamie MAYO, Appellee.
    No. 2D10-2411.
    District Court of Appeal of Florida, Second District.
    May 9, 2012.
    Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Gary E. Williams and Matthew W. Wilson of The Law Firm for Family Law, Clearwater, for Appellee.
   DAVIS, Judge.

Dwayne Mayo, the Former Husband, challenges the trial court’s Supplemental Final Judgment Modifying Parental Responsibility, Visitation, or Parenting Plan/ Time-Sharing Schedule. Because the record reflects that the trial court did not address the best interests of the child with respect to modifying the time-sharing schedule, we reverse.

The parties’ divorce was final prior to their son reaching the age of school attendance. In the original visitation order, a substantial portion of the Former Husband’s time with his son was comprised of weekdays. Once the son started school, the weekday schedule could no longer work and the parties agreed to a different plan without seeking formal modification of their time-sharing arrangement. This schedule operated successfully for a number of years before the Former Wife sought additional child support and the Former Husband requested modification of the custody agreement to formalize a changed time-sharing arrangement and to be named primary residential parent.

In its order, the trial court made the following finding:

The child was [three] years old at the time of the Final Judgment; he is now [twelve] at the end of the month. Since the Final Judgment, the parties have followed a substantially different and expanded time-share schedule. The substantial time-share agreement in itself is a substantial change of circumstances.
The Court finds that this substantial change of circumstances applies to the visitation schedule, but not as to a change in the majority time-sharing schedule. As a result, this Court is unable to get to the best interest of the minor child analysis as it pertains to changing majority time-sharing.

It appears that the trial court has confused the terms “visitation” and “time-sharing,” using “visitation” to mean what section 61.13(2)(c), Florida Statutes (2010), refers to as time-sharing and using the term “majority time-sharing” when referring to the determination of which party will be the child’s primary residential parent.

Regardless of the terminology used, the statute requires that once the trial court makes a finding that there is a substantial change in circumstances with regard to the time-sharing schedule, the trial court must consider the best interests of the child in setting that schedule. See § 61.13(3).

Accordingly, it was error here for the trial court not to consider the best interests of the child in setting the time-sharing schedule, despite whether the Former Husband also met his burden of showing a substantial change in circumstances regarding his request to be named the primary residential parent.

We therefore reverse the modification order and remand for the entry of an order setting a time-sharing schedule in keeping with the relief sought by the parties after consideration of the child’s best interests as outlined in section 61.13(3)(a)-(t).

Reversed and remanded.

KELLY and BLACK, JJ., Concur.

      . A 2008 amendment to the statute removed the word 'Visitation” from chapter 61 and replaced it in some instances with the term "parenting plan” and in other places, such as section 61.13(2)(c), with the term "time-sharing.” See ch. 2008-61, § 8, at 797-98, Laws of Fla.

      . Whether considering the best interests of the child as related to a change in the time-sharing schedule will also implicate the trial court’s determination that no substantial change in circumstances exists as to the primary residential parent determination is a discretionary matter that must be addressed in the trial court once the best interests considerations are factored into the time-sharing schedule.

      .Because our reversal may necessitate a reconsideration of the facts and arguments presented as they relate to the parties’ other arguments on appeal, we decline at this time to further address the Former Wife’s concession that the trial court's order exceeded the scope of the relief requested by the parties or the Former Husband’s additional argument that there exists a substantial change in circumstances upon which to change the primary residential parent.


author: NORTHCUTT, Judge.

text:
    Gary Jerard COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2317.
    District Court of Appeal of Florida, Second District.
    May 9, 2012.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Gary Collins appeals an order revoking his probation. His attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but noted that the court revoked probation based in part on a violation not alleged. Counsel points out, and we agree, that the record indicates the court would have revoked probation based on the violation properly alleged and admitted by Collins. Accordingly, we affirm the revocation of probation and sentences, but we order the court to strike the reference to condition five in the order of revocation. See Lee v. State, 67 So.3d 1199, 1201 (Fla. 2d DCA 2011).

Affirmed with instructions.

SILBERMAN, C.J., and CRENSHAW, JJ., Concur.


author: VILLANTI, Judge.

text:
    Gabrial RIOS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4950.
    District Court of Appeal of Florida, Second District.
    May 11, 2012.

      Gabrial Rios, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Gabrial Rios appeals the trial court’s order denying his motion for additional jail time credit in circuit court case number 2009-CF-615, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the order and remand for the post-conviction court to consider Rios’ motion as a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

The trial court sentenced Rios concurrently in two circuit court cases. In his motion, Rios argued that he is entitled to more jail time credit in one of those cases. On June 13, 2009, a warrant was issued in DeSoto County for Rios’ arrest for the sale and possession of methamphetamine. These offenses later became the foundation for case number 2009-CF-615. Two days later, on June 15, 2009, Rios was arrested in DeSoto County on separate charges of trafficking in methamphetamine and possession of drug paraphernalia in case number 2009-CF-340. Although he was detained in the DeSoto County Jail awaiting disposition in case number 2009-CF-340, the State did not execute the warrant on the charges in 2009-CF-615 until October 30, 2009. On June 23, 2011, over two years from the date that he was originally detained in DeSoto County, Rios pleaded nolo contendere and was sentenced in both cases.

In case number 2009-CF-340, the court sentenced Rios to four years’ imprisonment with a three-year minimum mandatory sentence for trafficking in methamphetamine (count one), and eleven months and twenty-nine days in jail for the possession of drug paraphernalia (count two). The court awarded Rios 739 days of jail time credit on count one and 364 days of credit on count two. In case number 2009-CF-615, the court sentenced him to four years’ imprisonment followed by three years’ probation for the sale of methamphetamine, and four years’ imprisonment for the possession of methamphetamine. The court imposed these sentences concurrently with each other and with the sentences imposed in 2009-CF-340. The court awarded Rios 602 days of jail time credit in 2009-CF-615. The court apparently calculated this credit from October 30, 2009, the date that the warrant was executed in 2009-CF-615, not the date he was originally detained in jail.

It is apparent that there was a five-month delay in the execution of the warrant on the charges in 2009-CF-615. Thus, the issue is whether Rios is entitled to the same credit in 2009-CF-615 as was awarded in 2009-CF-340-739 days’ credit for the entire length of his detainment in jail from the date of his arrest on June 15, 2009, to the date of his sentencing on June 23, 2011.

Generally, a defendant is not entitled to jail credit for time served until the warrant is served. Gethers v. State, 838 So.2d 504, 507-08 (Fla.2003). However, in Martinez v. State, 965 So.2d 1244 (Fla. 2d DCA 2007), this court addressed the issue of whether the State can withhold jail time credit by delaying the execution of a warrant. The defendant in Martinez was a probationer who was arrested when he committed a new offense of burglary. Id. at 1244. While he was in jail awaiting disposition of the burglary offense, he was charged with violating his probation by committing the new law violation, and a VOP arrest warrant was issued. Id. at 1245. The State delayed executing the arrest warrant on the VOP for eleven months. Id. The trial court subsequently sentenced Martinez to concurrent sentences on the burglary charge and the VOP but did not grant credit on the VOP sentence for the eleven months spent in jail between the issuance of the warrant and its actual execution. Id.

The narrow issue decided in Martinez was whether the State could manipulate the provision of jail time credit by delaying the execution of a VOP warrant when the detainee was in jail pending disposition of that same new offense and when the sentence on the new offense and on VOP were imposed concurrently. Id. This court held that Martinez was entitled to credit for the eleven months spent in jail after the issuance of the warrant but before its execution. Id. at 1246. The court reasoned that the sheriffs delay in the execution of the VOP warrant was a “completely arbitrary” nonjudicial factor beyond the defendant’s control. Id. But see Alphonso v. State, 20 So.3d 959, 960 (Fla. 4th DCA 2009) (affirming the denial of defendant’s 8.800(a) motion for additional jail time credit despite the alleged delay in the execution of the arrest warrant where the defendant served time in separate counties and where the record was unclear as to when the warrant was executed and whether law enforcement acted in collusion to prevent execution of the warrant).

In its response to an order to show cause issued by this court, the State argued that the narrow holding in Martinez should not be expanded to award jail time credit based on arrest warrants for new offenses distinct and separate from those offenses for which the defendant is already detained. Although this case differs from Martinez in that Rios was not held for a crime that also served as the underlying offense for a VOP, the warrant was issued from the same county where Rios was detained and the delay in the execution is present in both cases. However, the record before us is unclear and, while it seems preposterous that it took the DeSoto County Sheriff five months to complete the purely ministerial act of arresting Rios while he was detained in the DeSoto County Jail, this court cannot determine whether Rios is entitled to additional credit without more record facts. See Ross v. State, 37 So.3d 912, 912 (Fla. 2d DCA 2010) (holding that the entitlement to additional jail time credit in a rule 3.800(a) motion must be apparent from the face of the record). Because Rios’ motion was sworn and filed within two years from the date that his sentence became final, we remand for the postconviction court to treat the claim as a rule 3.850 claim and to determine whether Rios is entitled to additional jail time credit.

Reversed and remanded.

KHOUZAM and MORRIS, JJ., Concur.

      . Jail credit claims are cognizable in rule 3.850 motions. See Blake v. State, 807 So.2d 772, 773 (Fla. 2d DCA 2002) (holding that jail credit issues can be raised in a rule 3.850 motion " 'if the defendant is requesting additional jail credit due to factual matters not ascertainable from the trial court’s records’ ” (quoting Thomas v. State, 611 So.2d 600, 601 (Fla. 2d DCA 1993))).


text:
    D.L., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D11-29, 2D11-30, 2D11-31.
    District Court of Appeal of Florida, Second District.
    May 16, 2012.

      James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

D.L. seeks review of his adjudications and dispositions in three separate cases, contending that the State failed to prove any of the charges against him. The State has correctly conceded error in all three cases. Therefore, we reverse all three adjudications and remand for discharge.

Case 2D11-29 (circuit case 10-CJ-4443)

In this case, the State originally charged D.L. with obstructing or opposing an officer without violence and trespass. The State subsequently dismissed the trespass charge, but it argued that the obstructing charge was proper because D.L. fled from officers who could lawfully detain him based on an outstanding pickup order. Alternatively, the State argued that the obstructing charge was proper because it had proved that the officers were engaged in the execution of their legal duties when they detained D.L. to investigate the possible trespass charge.

In this appeal, however, the State properly concedes that it could not support the detention based on the pickup order because it did not introduce the order into evidence. See D.W. v. State, 40 So.3d 782, 783 (Fla. 3d DCA 2010) (holding that when the State seeks to prove that an officer is acting in the lawful execution of a legal duty by attempting to make an arrest pursuant to a pickup order, it must introduce the pickup order into evidence). Further, the State properly concedes that it failed to present sufficient evidence to show that the officers had a reasonable suspicion that D.L. was trespassing, see, e.g., Leroy v. State, 982 So.2d 1250, 1252 (Fla. 1st DCA 2008) (holding that mere presence on the property of another is not enough to create a reasonable suspicion that the defendant was trespassing); Williams v. State, 910 So.2d 368, 371 (Fla. 5th DCA 2005) (same), and thus failed to show that the officers were engaged in the lawful execution of their duties when they detained him to investigate that charge. Therefore, we must reverse D.L.’s adjudication in this case.

Case 2D11-30 (circuit case 10-CJ-3346)

In this case, the State charged D.L. with trespass on property other than a structure or conveyance based on his presence at an apartment complex. The State concedes that it failed to prove that D.L. had actual notice that he was not allowed on the property, see § 810.09(l)(a), Fla. Stat. (2010) (requiring proof that notice not to enter upon that property had been given “either by actual communication to the offender or by posting, fencing, or cultivation” of the property), and failed to rebut D.L.’s testimony that he had been invited onto the property by a tenant, see L.D.L. v. State, 569 So.2d 1310, 1312 (Fla. 1st DCA 1990) (holding that “[a] landlord generally does not have the right to deny entry to persons a tenant has invited to come onto his property”). Therefore, we must reverse D.L.’s adjudication in this case.

Case 2D11-31 (circuit case 10-CJ-616)

In this case, the State charged D.L. with obstructing an officer without violence based on D.L. giving a false name to a police officer during a consensual encounter. The State concedes that such actions do not constitute the offense of obstructing an officer without violence under these circumstances. See Sauz v. State, 27 So.3d 226, 227-28 (Fla. 2d DCA 2010). Therefore, we must reverse D.L.’s adjudication in this case as well.

Reversed and remanded for discharge.

ALTENBERND and KELLY, JJ., Concur.


text:
    Dwayne WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1513.
    District Court of Appeal of Florida, Second District.
    May 16, 2012.
    James Marion Moorman, Public Defender, and Stephen M. Grogoza, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

A jury convicted Dwayne Williams of tampering with evidence, § 918.13(l)(a), Fla. Stat. (2007). In this appeal he raises three claims of fundamental error: the evidence was insufficient to support his conviction, the court erred in admitting evidence at trial, and the State failed to prove he qualified for habitual offender sentencing. We affirm his first two points without further discussion. We reverse the habitual offender sentence and remand for resentencing.

At the sentencing hearing, the prosecutor relied on documents contained in another of Williams’s ease files to support the habitual offender sentence. The State candidly acknowledges that the present record does not contain the judgments on which the habitual offender sentence is based, and that a prosecutor may not rely on evidence from another hearing to prove the defendant’s habitual offender status. See Sanders v. State, 765 So.2d 161, 162 (Fla. 2d DCA 2000) (reversing habitual offender sentence and noting that the State did not move into evidence information about convictions from another court file); Brooks v. State, 38 So.3d 826, 827 (Fla. 1st DCA 2010) (noting error in allowing the State to rely on documents introduced in another sentencing hearing to prove defendant’s habitual offender status). Accordingly, we reverse Williams’s sentence and remand for resentencing. The State may offer additional evidence that Williams in fact qualifies for habitual offender sentencing at the hearing. See State v. Collins, 985 So.2d 985 (Fla.2008); Prince v. State, 989 So.2d 755, 756-57 (Fla. 2d DCA 2008).

Affirmed in part, reversed in part, and remanded.

VILLANTI and CRENSHAW, JJ., Concur.


author: CASANUEYA, Judge. ALTENBERND, Judge, Specially

text:
    In the Interest of K.C. and D.C., minor children. S.T., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D11-4544.
    District Court of Appeal of Florida, Second District.
    May 16, 2012.
    Norman A. Palumbo, Jr., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison McCabe, Assistant Attorney General, Tampa, for Appellee Department of Children & Family Services.

      Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   CASANUEYA, Judge.

S.T. appeals the order finding her children, K.C., aged eleven, and D.C., aged six, dependent as to her, primarily because the circuit court believed that she was in denial about the hazard the father’s alcohol and substance abuse presented to the children. She claims the circuit court erred in adjudicating the children dependent, arguing that the evidence does not support the circuit court’s finding that she will fail to protect them from imminent harm caused by their father’s drinking. We agree and reverse, holding that the record does not contain competent, substantial evidence authorizing the circuit court to enter a judgment of dependency as to the mother.

I. Background

This case involves an intact family of four, married parents living with their two biological children. The children do not lack adequate food, clothing, shelter, medical attention, or emotional support and are doing well in school. The father is unemployed, has had debilitating medical issues in the past with present consequences as a result of a motorcycle accident and lengthy coma, and as a young man made errors in judgment resulting in a criminal record. But he has had no involvement with the criminal justice system in any manner for the past ten years or more. The mother is the primary breadwinner for the family. She formerly had two jobs but at the time of the adjudicatory hearing had been laid off from one of them; she was at that time working full-time as a nurse on a night-shift at a hospital, seven p.m. to seven a.m. The father supplements the family’s income with odd jobs of lawn maintenance, handyman services, and auto repair. Based on interviews with the children and the parents’ non-cooperation with the agency, the Department filed a non-shelter petition of dependency in April 2011.

II. The Petition For Dependency

The Department’s petition alleged prospective abuse/neglect by the father and prospective neglect by the mother based on the following allegations. In relation to the father, on a date in January the children reported that the father was drinking beer in his car while he drove them home from school and that he smelled of alcohol. The six-year-old had stated that the father drank every night, and the eleven-year-old confirmed this, adding that the father also smoked marijuana, which she had seen him do recently. When the investigator went to the home, the father instructed the children not to answer the door, was uncooperative throughout the investigation, and refused services. The family had two other reports involving substance abuse, a 2001 report that was closed with some indicators of a substance-exposed child and a 2010 report that was closed with verified findings for substance abuse. The petition claimed that the father’s chronic, extensive, and abusive use of alcohol would likely continue and because of this, the children would remain at substantial risk of imminent abuse and neglect from the father.

In relation to the mother, the petition alleged that the mother was aware of the father’s use of alcohol but denied that he had a problem and allowed the father to transport the children home from school despite his alcohol problem. The mother did not believe what the children had reported about their father’s alcohol abuse and claimed she was being harassed by the Department. Like the father, she also claimed that the family does not need services. Because of the mother’s denial of the apparent problem posed by the father’s drinking, the Department alleged that the children are at risk of neglect from the mother. The Department sought judicial intervention because the children are “presently under substantial risk or imminent threat of harm or abuse or neglect.”

III. The Evidence Adduced At The Adjudicatory Hearing

We underscore that the above facts were the allegations in the petition and do not constitute admissible evidence. Both parents contested the allegations so the circuit court held an evidentiary hearing. Five witnesses testified at the hearing. The Department presented four: the father, the mother, the principal of the school that the eleven-year-old attended, and the kindergartener’s assistant teacher; the mother presented one, a long-time friend, close confidante of the family, and across-the-street neighbor, a sort of surrogate grandmother who had daily contact with the children. No representative of the Department who had had contact with the family testified, nor did either child, nor did any expert witness, such as a psychologist or counselor, who may have interviewed any member of the family.

A. For The Department: The Father’s Testimony

The father of the children was the first witness to testify. He stated that he drank most evenings, usually five-to-six bottles of light beer between six and nine p.m., and occasionally a glass of whiskey and soda. Sometimes he had a beer with friends or coworkers at lunchtime. He was not happy about the Department’s involvement with his family. He claimed that his children were fine and that he had no difficulty in taking care of them. He involved himself with their homework and often read to them or helped them with reading and making sure they did their chores, such as watering the garden and house plants and keeping their rooms neat.

He admitted to having a problem with cocaine more than ten years previously but had not used it since. He was unclear about the last time he used marijuana. As for the children’s purported statements to investigators that he recently used marijuana, he denied the marijuana use and contended the children were coerced into making those statements. He admitted that he had been in substance abuse programs in the past, both outpatient and residential, and stated that some (such as Alcoholics Anonymous) were voluntary and not court-ordered. He had successfully completed most of them. From those programs he learned to live his life day-by-day; to use his energy to take care of his family; and to avoid drugs, the people who used them, and the places where they were used. He went to Crossroads the day before the hearing, of his own volition, to take a drug test. He testified on cross-examination by the mother’s counsel that the results were negative for drugs, but upon questioning by the circuit court, he said he did not take a Breathalyzer test for alcohol. He denied that he was in need of treatment for alcohol abuse, contending that he did not abuse alcohol, his wife, or his children.

As for drinking and driving, the father denied having ever driven with the children in the car while under the influence of alcohol but did admit to transporting beer in his car in a cooler that was not within his reach while he was driving. He used to take his children to and from school daily but at the time of the hearing his license was suspended, so he no longer drove. He claimed the suspension was for failure to pay child support so his wife was currently assuming the duty of transporting the children.

He denied refusing to answer the door when a Department worker first came to the house, denied running out the back to avoid talking to the worker, and denied having ever told his children not to talk to a representative of the Department. On cross-examination, he explained that on the one occasion when a Department worker had come to the house with a police officer to interview the children, he left to secure a third-party witness to the interview. He further denied ever drinking alcohol and then driving with the children in the car.

During cross-examination by his own counsel, the father showed the circuit court a pouch that he used to store the tobacco that he smokes in a pipe and explained that his children had seen him use a pipe with the loose tobacco from the pouch. The circuit court sniffed the pouch and stated that it did not smell like marijuana. The father further explained that although he drank regularly, it was never to the point where he was falling down drunk or could not function the next day for work or had a hangover or blackout. He also denied having memory problems. As for his recent attendance at an Alcoholics Anonymous meeting, he explained that he went because a friend had asked him to accompany him there. And although his intent in going was to support his friend, he still enjoyed some personal benefit from the meeting because of the memories of past attendance.

Lastly, he testified that he regularly drank water from a cup while driving, but he never had alcohol in this cup. He categorically stated that he does not drink and drive and doesn’t drink enough to consider it a problem.

B. For The Department: The Mother’s Testimony

The Department next called the mother to the stand. She testified that she did not believe the father had a substance abuse problem and believed that the children were safe in his care. She said he would never place them in an unsafe environment, and she was comfortable leaving them alone with him. She and the father had been together for about fourteen years and had been married since 2006. She was aware of his past problems with drugs, his drug treatment history, and his criminal convictions. She also knew that he drank beer, usually in the evening or on weekends, but it was not to excess. And although they typically have beer in the house, she did not know if he drank a six-pack in the evening but she had never seen him drunk around the children. She was a moderate drinker of beer herself and, compared to her, some people might consider the father a heavy drinker. But she did not consider him so because he did not drink from morning to night, never got falling down drunk, and functioned well. Whenever she left for her nightshift at the hospital in the evening and the father was not back from his jobs, her stepfather, who lived behind them, or the surrogate grandmother, who lived across the street, was usually there for childcare. She did not think that the father drank while she was at work or when he was at work. She did not believe, when it was reported to her by the Department, that her six-year-old had said that the father drank alcohol while driving with the children. No one, other than Department workers, had ever expressed to her a concern about the father’s drinking. She did not believe that the father needed substance abuse treatment but would support him if the court ordered him to seek it.

Upon further questioning, she explained that the primary reason she transferred the eleven-year-old in the middle of the school year to the school where the six-year-old was attending was to ease the transportation problem of getting them to different schools on time. This move also had the advantage of removing the eleven-year-old from the stigma of often being pulled out of class to be interviewed by Department workers. She denied ever telling either child not to talk to Department workers and never threatened them that they would be taken away from the parents if they talked to the Department.

The mother reiterated that the family is active together. She described the various kinds of activities they enjoyed together and maintained that the children were normal and well-adjusted. She noted that the surrogate grandmother is also very involved with the family, eating dinner with them often and joining in their activities because the children have no blood-related grandparents living.

When queried about how she would react if she found out the father was drinking then driving with the children, she stated she would confront him and be highly upset and appalled and would try to put a stop to it, even going so far as to have him seek help. And she would not allow him to continue driving the children. If she thought he was drinking to excess, she would arrange to have him closely watched and avoid having him around the children by himself. She believed his past motorcycle accident left him with some memory problems, hearing issues, and train-of-thought difficulties. However, these difficulties did not prevent him from gainful employment and being a good father. She had never seen him impaired by alcohol to the extent that he could not go to work. And the children had never come to her appearing upset or showing anxiety about or fear of the father. Since 2002 or 2003 he had mended his immature, wayward, and addictive behavior. Before they had the children, he indulged in risky behavior but has not since. Now he is trustworthy, honest, and does what he needs to do as a husband and father.

On further examination by the Department, she said she had not discussed with him the current allegations about his drinking and driving with the children because she knew the allegations were false. She also disputed the father’s testimony and did not believe that he drank five to six beers a night about twenty-five days out of the month.

C. For The Department: The Elementary School Principal’s Testimony

The third witness the Department presented was the principal of the older child’s former elementary school. He testified to one occasion about a year earlier where he had a feeling that the father might have been intoxicated. The principal had become concerned one day after school when he saw the father, who had come to claim his child, walk up to the school with an uneven gait. He confronted the father, spoke to him about his concern, but did not smell any alcohol on his breath or observe any signs of alcohol impairment. After speaking with the father, the principal became comfortable that the father was not under the influence of alcohol, and they agreed about the importance of not coming to school for the children while under the influence. The principal never had further cause to believe that the father came onto school grounds in an impaired condition. The principal also reported that the father’s child who attended that school had done very well.

D. For the Department: The Assistant Kindergarten Teacher’s Testimony

The Department’s fourth and last witness was the six-year-old’s assistant kindergarten teacher who was very familiar with the child. She testified that on many occasions in the past, when the father walked up the driveway and passed by her on the way to claim his child, the alcohol smell coming from him was noticeable and strong enough to turn heads. These occasions were somewhat earlier in the school year because towards the end of the school year the mother was the parent who was regularly picking up the child. However, the assistant kindergarten teacher did not speak to the father so there was no testimony about her smelling alcohol on his breath. She never observed him get into a vehicle with the child, so never reported her concern because she did not think that he was driving. Had she seen him attempt to drive with his child after smelling alcohol on him, she would have followed the school’s protocol by interceding, taking the child to into the principal’s office, and reporting the situation. She assumed that the father had been drinking or that alcohol had spilled on his clothes on those occasions when she noticed the odor from him. But even on those occasions, he never behaved in a way that made her believe his child was in danger.

At the end of the Department’s case-in-chief, the circuit court denied the mother’s motion for judgment of dismissal.

E. For The Mother: The Surrogate Grandmother’s Testimony

After the Department rested, the mother called a single witness, the surrogate grandmother/neighbor/family friend. She testified to being “like family” for about thirty years, very close to the father and especially his mother when she was alive. And she continued to be very close with these two children. But neither child had ever come to her expressing a problem with either parent. She was aware of the father’s past problems in his younger years but in the last eight to ten years he had abandoned all the risky and troublesome behavior. Since having children, he remained at home most of the time if he was not working. She was aware of his drinking, testifying that he drank maybe two nights out of the five that she was regularly present and up to three to four beers in an evening. She considered that at times he was “buzzed,” but the drinking had never interfered with his ability to interact with or care for his children. She never saw him drink and drive with the children, act like he was drunk, or be belligerent.

At the end of this testimony, the circuit court denied the mother’s renewed motion for judgment of dismissal.

IV. The Circuit Court’s Findings

The circuit court found the children dependent as to both parents, finding that neither parent was a credible witness. The circuit court concluded that either the father was not telling the truth or his addiction to drugs and alcohol affected his memory regarding the details of his alcohol or drug consumption. As for the mother, the circuit court found her testimony “disingenuous at best.” And if it was not disingenuous, the circuit court believed her to be in “complete and total denial of the father’s very clear addiction to alcohol.” As an example, the circuit court noted that the mother did not even believe the father’s own testimony about the extent of his alcohol use. Similarly, she failed to believe her children’s statements about the father’s alcohol use and his drinking and driving. And despite the mother’s knowledge of the father’s past addiction and that a relapse could be likely at any point in his situation, the circuit court stated that she was not concerned enough to monitor him. The circuit court concluded that “[d]ue to the mother’s denial about the father’s serious substance abuse problem, the children are at substantial risk of imminent neg[l]eet from the mother.”

Despite the finding of dependence, the circuit court placed the children in the temporary custody of the parents and ordered that the parents comply with the case plan that the Department had prepared.

Y. Standard Of Review

“A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent, substantial evidence in the record.” C.M. v. Dep’t of Children Family Servs., 997 So.2d 513, 515 (Fla. 2d DCA 2008) (citing R.F. v. Fla., Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000)). “Competent substantial evidence is tantamount to legally sufficient evidence.” R.F. v. Fla., Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000). We must give due deference to the circuit court who sat as the trier of fact and had the “first-hand opportunity to see and hear the witnesses testify.” A.D. v. Dep’t of Children & Families, 837 So.2d 1078, 1080 (Fla. 5th DCA 2003). But if there is not competent, substantial evidence in the record to support the circuit court’s final order, the error rises to an abuse of discretion. See Smith v. Smith, 934 So.2d 636, 642 (Fla. 2d DCA 2006) (holding that where there was no competent, substantial evidence that the entire balance on the card was attributable to the wife’s alleged misuse of the credit card, the court’s allocation of the entire balance to the wife in equitably distributing this marital liability was an abuse of discretion).

VI. Applicable Law

Section 39.01(15)(f), Florida Statutes (2010), requires a dependency adjudication if the circuit court finds the children to be “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” Such dependency adjudication is authorized “even if no actual abuse is proved.” L.R. v. Dep’t of Children & Family Servs., 947 So.2d 1240, 1243 (Fla. 2d DCA 2007). “But this prospective abuse must, indeed, be ‘imminent.’ ” Id. (citing N.D. v. Dep’t of Children & Family Servs., 939 So.2d 1192, 1194 (Fla. 2d DCA 2006)).

VII. Discussion

As petitioner in this dependency proceeding, it is the Department’s burden to prove dependency by a preponderance of the evidence. A.T.N. v. Fla. Dep’t of Children & Family Servs., 70 So.3d 634 (Fla. 1st DCA 2011). The Department must prove that at the hands of then-mother, S.T., the two children are at substantial risk of imminent abuse or neglect in order to have the circuit court declare the children dependent. The Department provided the testimonies of the father, the mother, the older child’s elementary school principal, and the younger child’s assistant kindergarten teacher. The salient features of the circuit court’s final order are its discounting of the testimonies of both parents regarding the extent of the father’s alcohol use and its finding that neither was a credible witness. The circuit court stated that either the mother was disingenuous in her testimony or she was in denial that the father’s drinking posed a threat of imminent harm to the children.

After discounting the parents’ testimonies based on the circuit court’s findings of credibility, it is difficult to discern the evidence the circuit court relied upon to support its determination of dependency as to the mother. The Department’s remaining two witnesses offered no evidence to support the assertion that the father was an alcohol addict. The record establishes that the elementary school principal testified to but one instance that he had a suspicion that the father suffered from alcohol intoxication. And, after conversation with the father, this suspicion was entirely allayed. The principal went further to describe this conversation in which the father agreed with the importance of not coming to pick up children when impaired by alcohol. The assistant kindergarten teacher said the father often gave off an odor of alcohol but never connected the odor to any behavior that might put the children in danger. The teacher did not testify that whenever she spoke with him she smelled alcohol on his breath, but she rarely spoke to him in any event. Except for the alcohol odor emanating from him, the father looked and acted like any other parent. And, most tellingly, she never saw him drive up or drive off with his child while emanating this odor. The evidence from the school employees was not competent evidence of the father’s alcohol use or that it demonstrably affected the children as required by section 39.01(32)(g). See L.R., 947 So.2d at 1245.

The other remaining evidence from a person more familiar with the father’s alcohol consumption than the two school employees was that of the surrogate grandmother. And the court did not find her unworthy of belief. But her testimony also did not indicate excessive alcohol consumption by the father or negative behavior that might be expected to result in imminent neglect. Furthermore and more importantly, nothing in the surrogate grandmother’s testimony reflected badly on the mother’s behavior. To the contrary, the surrogate grandmother testified that the father’s drinking — which is not a crime — did not preclude him from contributing to the family’s income as much as his physical disabilities allow or from shouldering his share of child care. The surrogate grandmother’s testimony showed that the father was at home whenever he was not working. The circuit court’s inference in its final order that the surrogate grandmother had to often step in after school to care for the children is not supported by the evidence. Because she lives across the street, she appears to be on call whenever the family needs her and often is present in the home without a stated need, only because she had become “like family” according to her own words.

Without competent evidence that the mother knew that the father was endangering the children by his conduct when drinking, the circuit court could not have concluded that the children should be determined dependent as to the mother. Therefore, the circuit court should have granted the mother’s motion for judgment of dismissal at the close of the Department’s case. Neither did the subsequent testimony from the surrogate grandmother — confirming that the father drank several beers in two out of five evenings a week and was sometimes buzzed in the afternoon — provide support for a finding of dependency.

In summary, the Department did not present competent, substantial evidence that the children were in danger of prospective harm, abuse, or neglect from the mother nor did it meet the imminency requirement of section 39.01(15)(f). See A.M.T. v. State, 883 So.2d 302, 309 (Fla. 1st DCA 2004) (holding that reversal was required where the court adjudicated the child dependent without competent, substantial evidence to support the allegations in the petition for dependency). In L.R., 947 So.2d 1240, this court reversed a finding of dependency because of a lack of evidence of substantial risk of imminent harm. In L.R., the father had petitioned for an injunction against domestic violence against the mother, and this was used to ground an order of dependency of the children as to her. The court based the dependency adjudication on findings of violence, failure to protect the children from a violent father, and substance or alcohol abuse. In the opinion, this court discussed at length the lack of competent evidence that the Department presented on any of these three bases which required reversing the order of dependency. The circumstances of L.R. are analogous to S.T.’s and similarly require reversal because the circuit court findings have no basis on any competent, substantial evidence that the Department presented.

VII. Conclusion

The Department’s evidence taken as a whole did not provide substantial, competent evidence that the father’s alcohol consumption and the mother’s consequent behavior has demonstrably affected the children or has put either or both of her children at substantial risk of imminent neglect. There was no evidence that the family requires governmental aid for food, shelter, clothing, or medical needs. The father takes a major role in his children’s lives and seems to function rather well. He no longer drives because he has had his license suspended. The mother’s part in the lives of her children is equally involved taking into account her fulltime employment. Although she is in the nontraditional role as the primary breadwinner, according to outside observers the children are thriving in the parents’ care and have the benefit of an extra-generational support system in the step-grandfather and the surrogate grandmother.

Order of dependency reversed.

KELLY, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge, Specially

concurring.

The Department filed a single petition to have the children in this case declared dependent as to both parents. The trial court granted that petition. Another panel of judges from this court affirmed the order of adjudication of dependency as it relates to the father. Thus, the children are and remain dependent. By joining in this opinion, I am not suggesting that the earlier order affirming the dependency of the children as to their father was incorrect in any manner.

Although the evidence could be stronger, it appears from this record that the father is a functional alcoholic. Because of the mother’s work schedule, he is often alone with the children. The trial court has the authority in the pending dependency proceeding to address by case plan any valid statutory risk created by the father.

I agree that the allegations against the mother in this proceeding were not proven. There is no reason that she cannot be the legal custodian of the children during this dependency proceeding. As such, the trial court will have the authority to require her to take certain actions. See § 39.521(l)(b)(l), Fla. Stat. (2010). If, in her capacity as legal custodian, the mother fails or refuses to take the actions reasonably required by the trial court in the father’s proceeding, the trial court will have the authority to address that situation.

      . The children's father, P.C., also appealed the finding of dependency as to him. This court affirmed his appeal on December 28, 2011, without written opinion. P.C. v. Dep’t of Children & Family Servs., 76 So.3d 297 (Fla. 2d DCA 2011) (table decision). Our lengthy discussion of the facts concerning the father is necessitated by the fact that they relate directly to the circuit court’s findings about the mother.

      . See § 39.01(15)(f), Fla. Stat. (2010) (defining a dependent child as one found by the court "[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the par-ent_”).

      . The petition alleging facts to support an adjudication of dependency was sworn. And sworn allegations can constitute evidence. Cf. Borland v. State, 848 So.2d 1288, 1290 (Fla. 2d DCA 2003) ("Unsworn allegations are not evidence and are insufficient to prove any fact.”). However, the allegations in the Department’s petition constitute inadmissible hearsay. See L.R. v. Dep't of Children & Family Servs., 947 So.2d 1240, 1244 (Fla. 2d DCA 2007). The allegations in the petition resulted from the Department’s investigative efforts and interviews with the children.

      . The Department did not further delve into his lack of a license or the reason for the suspension, nor did any other party.

      . The circuit court’s final order states that the mother “did not even believe the father’s own testimony regarding his alcohol use.” The transcript indicates it was not a matter of belief on her part. Upon being asked how much the father drank, it is not surprising that her approximation of the amount was different, and less, than his because she left before seven each evening to work nights. And the father testified that most of his drinking was done between dinner and nine p.m. We also note that this time frame of his regular drinking habit is outside the time when the children need transportation to and from school.

      . Section 39.01(32) provides:
      “Harm” to a child's health or welfare can occur when any person ... (g) exposes a child to a controlled substance or alcohol. Exposure to a controlled substance or alcohol is established by ... 2.[e]vidence of extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage.

      . Because the surrogate grandmother’s testimony was presented by the mother and not the Department, it could not be part of the analytical equation when the circuit court was considering the mother's motion for judgment of dismissal based on lack of evidence at the close of the Department's case.


author: WALLACE, Judge.

text:
    Marzuq AL-HAKIM, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5558.
    District Court of Appeal of Florida, Second District.
    May 16, 2012.
   WALLACE, Judge.

Marzuq Al-Hakim appeals from an order summarily dismissing his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. After Mr. Al-Hakim made two attempts to submit a motion to the postcon-viction court’s satisfaction, the court dismissed his supplemental motion with prejudice on the ground that Mr. Al-Hakim’s legibly handwritten motion, part of which was submitted on the form included in rule 3.987, was not double-spaced. We reverse and remand for the posteonviction court to consider Mr. Al-Hakim’s motion on the merits.

Mr. Al-Hakim’s first motion was handwritten in pencil on six pages of wide-ruled paper. Using a form order, the postcon-viction court dismissed his motion for the following deficiencies: the content of the motion was not written in blue or black ink and the content of the motion was not double-spaced. For Mr. Al-Hakim’s convenience, the court attached to its dismissal order a copy of the model form authorized by rule 3.987.

The court’s dismissal order was apparently prompted by rule 3.850(c), titled “Contents of Motion,” which was amended on July 1, 2011, to include the following requirements:

Motions shall be typewritten or handwritten in legible printed lettering, in blue or black ink, double-spaced, with margins no less than one inch on white 8 1/2-by-ll inch paper. No motion, including any memorandum of law, shall exceed 50 pages without leave of the court upon a showing of good cause.

Mr. Al-Hakim moved for rehearing and informed the court that it was the policy of the Hillsborough County Jail, where he was incarcerated, to classify ink pens as contraband; therefore, he was required to submit his motion in pencil. Mr. Al-Hak-im also commented that the court’s order was not entirely double-spaced and that parts of form 3.987 were single-spaced as well. Arguing that pro se litigants are held to less stringent standards of formality than attorneys, Mr. Al-Hakim asked the court to vacate its order and consider the merits of his motion.

The postconviction court granted rehearing and determined that it would overlook the blue or black ink requirement of rule 3.850(c), but the court held steadfast to the double-spacing requirement. On this basis, the postconviction court dismissed the motion without prejudice and gave the defendant thirty days to file a facially sufficient motion in compliance with all requirements of the rule.

Within a few days of the second dismissal order, Mr. Al-Hakim refiled a supplemental motion. This pleading was written on the rule 3.987 model form, attached to which was a copy of the first motion, handwritten on lined paper. This supplemental motion did not cure the perceived deficiency in line-spacing, which was presumably to be overcome by skipping every other single-spaced line when filling in the model form. This time the court denied the motion with prejudice, declaring that its “pri- or Order could not have been clearer in instructing Defendant that, although the model form itself was single-spaced, the information Defendant provided in that form must be double-spaced.”

In our opinion, the postconviction court interpreted the rules on formatting too stringently and inappropriately applied the double-spacing requirement to handwritten submissions. As a practical matter, double-spacing is associated primarily — if not exclusively — with typewritten or computer-generated documents. The word “double-space” is defined as “[t]o type or format so that there is a full space between lines.” The American Heritage Dictionary of the English Language 539 (4th ed. 2000). Unlike the postconviction court, we construe rule 3.850(c) to require that only typewritten documents must be double-spaced.

The clear intent of the amendment to rule 3.850(c) was to relieve judges and their staffs from the burden of sifting through overlong and illegible motions. Before the amendment, the Fourth District in Ezer v. State, 10 So.3d 1175, 1177 (Fla. 4th DCA 2009), reviewed an “excessively lengthy motion” and declared that “a strict page limitation should be imposed on rule 3.850 motions.” In the same vein, the Fourth District lamented that “[t]he laudable goals of post-conviction relief are lost when defendants abuse the process” by filing extremely long motions. Hedrick v. State, 6 So.3d 688, 691 (Fla. 4th DCA 2009). By imposing a limit of fifty pages of specified size with explicit margins, the amendment tackled that problem. Like the margin requirement, double-spacing prevents evasion of the length limit by compression of an overlong motion into the required number of pages. A quick look at Mr. Al-Hakim’s filings, however, reveals that he was not trying to squeeze excessive content into a single-spaced motion.

From our review of well over a thousand postconviction appeals in each of the past several years, this court is well aware that postconviction motions are largely handwritten by prisoners who have no access to computers or typewriters. As we acknowledged in Moore v. State, 48 So.3d 911, 912 (Fla. 2d DCA 2010), before the rule was amended, prisoners “often have no access to computers and file handwritten pleadings that are extremely hard to read.” Even after the amendment to the rule, postconviction courts maintain discretion to dismiss illegible motions if necessary. A handwritten motion containing an excessive number of lines per page could also be dismissed as illegible or, depending on the number of pages, as violative of the length limitations. But in this case, the postconviction court abused its discretion by dismissing with prejudice Mr. Al-Hak-im’s legibly handwritten six-page motion for lack of double-spacing.

Reversed and remanded for consideration of Mr. Al-Hakim’s supplemental motion on the merits.

ALTENBERND and LaROSE, JJ., Concur.

      . See In re Amendments to Fla. Rules of Criminal Procedure 3.850 & 3.851, 72 So.3d 735, 739 (Fla.2011).


author: KELLY, Judge.

text:
    William REDENIUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4305.
    District Court of Appeal of Florida, Second District.
    May 16, 2012.
    William Redenius, pro se.
   KELLY, Judge.

William Redenius seeks review of an order which denied his rule 3.850 motion for postconviction relief on the ground that it was untimely. We reverse.

Redenius’s Florida conviction became final in July 2006. More than five years later, Redenius filed a motion for postcon-viction relief based on ineffective assistance of counsel. The motion was summarily denied as untimely because it was filed outside the two-year time limitation contained in Florida Rule of Criminal Procedure 3.850(b). On appeal, Redenius argues that the two-year time period for filing his motion for postconviction relief was tolled because during that time he was incarcerated in an out-of-state federal prison and had no access to Florida legal materials or assistance. Because the record is unclear, we reverse and remand for an evidentiary hearing to determine whether Redenius was deprived of access to Florida legal materials or whether he was represented by counsel during the relevant time period. See Ruiz v. State, 3 So.3d 385 (Fla. 2d DCA 2009) (holding that the two-year time limit for filing a rule 3.850 motion is tolled when an unrepresented defendant is incarcerated in another state and does not have access to Florida legal materials); Ramsey v. State, 965 So.2d 854 (Fla. 2d DCA 2007) (same); Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997) (same). If the postconviction court finds that the time for filing Redeni-us’s motion was tolled due to his out-of-state incarceration, the court is directed to consider the motion on its merits.

Reversed and remanded with directions.

LaROSE and BLACK, JJ., Concur.


author: PALMER, J.

text:
    Susan HEWLINGS, Appellant, v. ORANGE COUNTY, FLORIDA, Orange County Animal Services and Sarah Zimmerman, Appellees.
    No. 5D11-2715.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2012.
    Michael M. Kest, of Kest Law, Winter Park, for Appellant.
    Edward M. Chew, Senior Assistant County Attorney, Orlando, for Appellee.
   PALMER, J.

In this public records case, Susan Hewl-ings appeals the trial court’s order denying her motion for attorney’s fees against Orange County, Orange County Animal Services, and Sarah Zimmerman as records custodian for Orange County Animal Services (collectively County). We reverse.

Hewlings filed a petition for writ of mandamus directed to the County, seeking to enforce her right of access to government records. The petition alleged that Hewlings faxed a letter to the County demanding copies of all records related to a dangerous dog investigation of her dog. Later that day, Hewlings received a voice-mail from the County acknowledging the request. The next day, Hewlings faxed another letter to the County, again requesting access to and copies of all documents relating to the investigation. One week later, after receiving no response from the County, counsel for Hewlings contacted the County Attorney’s Office and was advised that a response would be issued that day. Three days later, Hewl-ings’ counsel received a faxed letter from the County stating that the County intended to comply with the records request. The letter advised that someone would contact Hewlings to arrange a time within 14 days for her to examine the records and designate the documents to be copied. Hewlings responded by letter, explaining that she did not need to inspect the records because she was requesting copies of all documents relating to the investigation. After receiving no further communication from the County, Hewlings filed her mandamus petition seeking an order directing the County to comply with her records request. Upon consideration, the trial court entered an order directing the County to produce the records within forty-eight hours. The County complied with the order.

Hewlings then filed a motion for attorney’s fees. The motion argued that Hewl-ings was entitled to recover fees because there was no reason justifying the County’s 45-day delay in complying with her records request. The County maintained that the motion should be denied because the County responded to Hewlings’ request by voicemail and fax. The trial court agreed with the County and, therefore, denied Hewlings’ motion.

Hewlings appeals, arguing that the trial court erred in denying her motion. We agree.

Hewlings sought mandamus relief under Florida’s public records statutes. “It is the policy of this state that all state, county and municipal records shall at all times be open for a personal inspection and copying by any person.” 119.01(1), Fla. Stat. (2010). Section 119.07 authorizes all persons to inspect and copy public records. The Fourth District has construed section 119.07 as meaning that “[i]t is the obligation of the custodian of public records ... to furnish copies of records when the person requesting them identifies the portions of the record with sufficient specificity to permit the custodian to identify the record and forwards the fee.” Woodard v. State, 885 So.2d 444, 445-46 (Fla. 4th DCA 2004).

Section 119.12 authorizes an award of attorney’s fees to a party who succeeds in a civil action to overcome an agency’s unlawful refusal to permit public records to be inspected or copied:

119.12. Attorney’s fees
If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys’ fees.

This section is liberally construed so as to best enforce access to public records. Downs v. Austin, 559 So.2d 246 (Fla. 1st DCA 1990). In Barfield v. Town of Eatonville, 675 So.2d 228, 224 (Fla. 5th DCA 1996), our court explained that the purpose the attorney’s fee statute “is to encourage public agencies to voluntarily comply with the requirements of Chapter 119, thereby ensuring that the state’s general policy is effectuated.” Barfield further held: “An unjustified delay in complying with a public records request amounts to an unlawful refusal under [the statute].” Id.

In rejecting Hewlings’ motion, the trial court relied on the following language in Office of State Attorney v. Gonzalez, 953 So.2d 759 (Fla. 2d DCA 2007): “[Ajttor-ney’s fees are awardable for unlawful refusal to provide public records ... when the agency unjustifiably fails to respond to a public records request by delaying until after the enforcement action has been commenced.” Id. at 764 (emphasis added). The trial court interpreted the emphasized phrase as meaning that Hewlings was not entitled to recover attorney’s fees because the County responded to her records request by voicemail and fax. This interpretation of Gonzalez is incorrect. Two cases on which Gonzalez relied, Barfield and Brunson v. Dade County School Board, 525 So.2d 933 (Fla. 3rd DCA 1988), referred to delay in complying with a records request, not delay in responding to a records request. In addition, the mere fact that the County quickly responded to Hewlings’ request was not dispositive of whether the County unjustifiably delayed in complying with her request. As such, the trial court’s ruling that Hewlings was not entitled to recover attorney’s fees because the County responded to her records request was erroneous.

Accordingly, we reverse the trial court’s order and remand this matter for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J., and COHEN, J., concur.


author: PER CURIAM.

text:
    Jason Eric CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4326.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, for Appellee.
   PER CURIAM.

Appellant, who represented himself at his violation of probation hearing, argues the trial court violated his right to counsel by failing to renew an offer of counsel before imposing sentence. See Traylor v. State, 596 So.2d 957, 968 (Fla.1992) (stating that a defendant has the right to assistance of counsel at each crucial stage of the proceedings); Lewis v. State, 31 So.3d 944, 945 (Fla. 1st DCA 2010) (holding that Florida Rule of Criminal Procedure 3.111(d)(5) requires trial court to renew offer of counsel at sentencing phase); Travis v. State, 969 So.2d 532, 533 (Fla. 1st DCA 2007) (“Sentencing is a crucial stage of a criminal proceeding, so that the offer of assistance of counsel must be renewed then, even if the defendant has previously waived counsel at other stages.”). The State properly concedes error. Accordingly, we VACATE Appellant’s sentence and REMAND for resentencing.

PADOVANO, MARSTILLER, and ROWE, JJ., concur.


text:
    STEINER ATLANTIC CORPORATION and Broadspire, Appellants, v. George BRAMWELL, Appellee.
    No. 1D12-1778.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Michele E. Ready of Walton, Lantaff, Schroeder & Carson, LLP, Miami, for Appellants.
    William F. Souza of the Law Offices of William F. Souza, P.A., North Miami Beach, for Appellee.
   PER CURIAM.

Upon review of Appellant’s timely response to this Court’s April 20, 2012, show cause order, we dismiss this appeal for lack of jurisdiction because the order under review is neither a final order nor an appealable non-final order under Florida Rule of Appellate Procedure 9.180(b)(1).

An order is final if it constitutes an end to judicial labor. See Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1st DCA 2002) (“The traditional test for finality is whether the decree disposes of the cause on its merits leaving no questions open for judicial determination except for execution and enforcement of the decree if necessary.”). Contrary to the Employer/Carrier’s argument, questions remain open and they were ripe for adjudication.

When the parties completed the July 22, 2011, Uniform Statewide Pretrial Stipulation, one of the stated claims included “all attendant issues related to the provision of housing, i.e. housing offset, insurance, utilities, moving expenses, lease or deed etc.” In the order under review, the Judge of Compensation Claims (JCC) reserved jurisdiction “to determine all attendant (affiliated) issues related to the housing to include, but not limited to housing offset, insurance, utilities and moving expenses and the like.” In addition, the JCC included language in the decretal portion of the order that “(a)n expedited hearing with regard to the reserved issues will be set.” If it is necessary to schedule another hearing to address the claims asserted in the pretrial stipulations, it can hardly be said that “no questions [remain] open for judicial determination except for execution and enforcement of the decree if necessary.” Hoffman, 817 So.2d at 1058.

Accordingly, this appeal is DISMISSED.

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


text:
    Carl J. GAMBLE, Appellant, v. STATE, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, o/b/o, Katherine L. WILLIAMS, Appellee.
    No. 1D11-5577.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Carl J. Gamble, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In accordance with appellee’s confession of error, the final order of paternity and administrative support being appealed herein is reversed, and the matter is remanded for further proceedings.

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


text:
    Thomas GIDDENS, Appellant, v. Theresa TLSTY, Appellee.
    No. 1D11-2941.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Thomas Giddens, pro se, Appellant.
    Theresa Tlsty, pro se, Appellee.
   PER CURIAM.

Thomas Giddens appeals a final injunction for protection against repeat violence, entered against him at the behest of Theresa Tlsty pursuant to section 784.046(2), Florida Statutes (2011). Because the final injunction is not supported by competent, substantial evidence, we reverse.

Section 784.046(2) creates a cause of action for “an injunction for protection in cases of repeat violence.” “Repeat violence” is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b), Fla. Stat. (2011). ‘Violence” means “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death.” § 784.046(l)(a), Fla. Stat. (2011).

The trial court made no findings of fact and therefore did not explicitly find two incidents of violence or stalking committed by Mr. Giddens. Our review of the record does not reveal evidence which would support finding the requisite two incidents. See, e.g., Power v. Boyle, 60 So.3d 496, 498 (Fla. 1st DCA 2011) (“The trial court’s finding of two incidents of violence or stalking required for an injunction under section 784.046 must be supported by competent substantial evidence.”); Murphy v. Reynolds, 55 So.3d 716, 717 (Fla. 1st DCA 2011) (holding that an injunction for protection against repeat violence should not have been entered because no competent substantial evidence linked the respondent to the cyberstalking incidents); Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (holding that yelling profanities and threats at the petitioner, even after a previous battery by respondent against petitioner, was not sufficient for a finding of “repeat violence” without evidence that respondent took an action creating a “well-founded fear that violence was imminent”); Santiago v. Towle, 917 So.2d 909, 911 (Fla. 5th DCA 2005) (holding that a respondent’s statement to a third party that he “had a gun and was not afraid to use it” did not constitute an incident of violence because there was no “overt act indicating an ability to carry out the threat or justifying a belief that violence was imminent”).

Reversed.

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


author: JOHNSON, J.,

text:
    LOUISIANA DEMOCRATS, et al. v. The LOUISIANA BOARD OF ETHICS, et al.
    No. 2012-CC-0257.
    Supreme Court of Louisiana.
    April 20, 2012.
   JOHNSON, J.,

would grant the writ application for the following reasons.

| ,This Court in Mary Moe, LLC v. Louisiana Board of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22, 30, held that although the legislature authorizes an administrative agency, like the Louisiana Board of Ethics (“LBE”), to issue subpoenas, the subpoenas “must be sufficiently limited in scope and specific in directive so that compliance will not be reasonable, overbroad, or unduly burdensome.” “Moreover the evidence sought by the subpoena must be reasonably relevant and material to the investigation’s lawfully purpose.” To exercise its subpoena power and obtain records, the LBE needs sufficient reasonable cause to believe that a violation of the CFDA has occurred. See also 18:1511.4.

In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the United States Supreme Court held that the state of Alabama could not require a nonprofit membership corporation to produce records including the names and addresses of all association members, as this was a denial of due process and a substantial restraint upon the members’ exercise of their right to freedom of association. The Court found 12that there was a reasonable likelihood that the association itself, through diminished financial support and membership, might be adversely affected if production of their membership list was compelled, and the association had standing to complain of the production order, on behalf of its members. The Court found that compelled disclosure of membership in an organization engaged in advocacy of particular beliefs constitutes interference with freedom of assembly. The Court concluded that an order requiring an association to produce records, including names of its members, was invalid, as violating the constitutional right of freedom of association. The judgment of contempt and fine for noncompliance with such order was also invalid.

In Pollard v. Roberts, 283 F.Supp. 248 (E.D.Ark.1968), the United States District Court found that the subpoenas violated contributors’ First Amendment rights where there was no showing that the identities of party contributors and the amounts of their contributions were reasonably relevant to the prosecutor’s investigation of vote-buying. The court recognized that the State cannot compel a “sweeping and indiscriminate identification of all members of a group in excess of the State’s legitimate need for the information.”

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the United States Supreme Court held that although the limitations on political campaign contributions in the Federal Elec-tión Campaign Act of 1971 were generally constitutional, the Act’s limitation on election expenditures violated contributor’s First Amendment right to political expression.

In my view, the subpoenas duces tecum were not reasonably tailored to seek information and documents relevant and material to the LBE’s investigation. The LBE is prohibited from requiring any other documents or information beyond this scope as it violates the contributors’ First Amendment rights to participate in campaigns, to political speech and political association. In my opinion, the LBE, in lathis instance, failed to explain its “sufficient reasonable cause” for the subpoenas duces tecum, and therefore, has exceeded its constitutional authority.

The First Amendment protects a person or committee’s political speech, press, and political association, i.e., the participation in campaigns; as such, the compelled disclosures of documents, transactions, and communications relating to a person’s political association must be supported by a “compelling” state interest. See Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963). In the case sub judiee, the LBE failed to demonstrate an overriding and compelling state interest supporting the scope of the subpoenas, or a substantial relationship between the records sought and any compelling interest. For these reasons, I would grant this writ application.


text:
    LOUISIANA DEMOCRATS, et al. v. The LOUISIANA BOARD OF ETHICS, et al.
    No. 2012-CC-0260.
    Supreme Court of Louisiana.
    April 20, 2012.
   JOHNSON, J.,

would grant the writ application for the following reasons.

| tThis Court in Mary Moe, LLC v. Louisiana Board of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22, 30, held that although the legislature authorizes an administrative agency, like the Louisiana Board of Ethics (“LBE”), to issue subpoenas, the subpoenas “must be sufficiently limited in scope and specific in directive so that compliance will not be reasonable, overbroad, or unduly burdensome.” “Moreover the evidence sought by the subpoena must be reasonably relevant and material to the investigation’s lawfully purpose.” To exercise its subpoena power and obtain records, the LBE needs sufficient reasonable cause to believe that a violation of the CFDA has occurred. See also 18:1511.4.

In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the United States Supreme Court held that the state of Alabama could not require a nonprofit membership corporation to produce records including the names and addresses of all association members, as this was a denial of due process and a substantial restraint upon the members’ exercise of their right to freedom of association. The Court found 12that there was a reasonable likelihood that the association itself, through diminished financial support and membership, might be adversely affected if production of their membership list was compelled, and the association had standing to complain of the production order, on behalf of its members. The Court found that compelled disclosure of membership in an organization engaged in advocacy of particular beliefs constitutes interference with freedom of assembly. The Court concluded that an order requiring an association to produce records, including names of its members, was invalid, as violating the constitutional right of freedom of association. The judgment of contempt and fine for noncompliance with such order was also invalid.

In Pollard v. Roberts, 283 F.Supp. 248 (E.D.Ark.1968), the United States District Court found that the subpoenas violated contributors’ First Amendment rights where there was no showing that the identities of party contributors and the amounts of their contributions were reasonably relevant to the prosecutor’s investigation of vote-buying. The court recognized that the State cannot compel a “sweeping and indiscriminate identification of all members of a group in excess of the State’s legitimate need for the information.”

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the United States Supreme Court held that although the limitations on political campaign contributions in the Federal Election Campaign Act of 1971 were generally constitutional, the Act’s limitation on election expenditures violated contributor’s First Amendment right to political expression.

In my view, the subpoenas duces tecum were not reasonably tailored to seek information and documents relevant and material to the LBE’s investigation. The LBE is prohibited from requiring any other documents or information beyond this scope as it violates the contributors’ First Amendment rights to participate in campaigns, to political speech and political association. In my opinion, the LBE, in lathis instance, failed to explain its “sufficient reasonable cause” for the subpoenas duces tecum, and therefore, has exceeded its constitutional authority.

The First Amendment protects a person or committee’s political speech, press, and political association, i.e., the participation in campaigns; as such, the compelled disclosures of documents, transactions, and communications relating to a person’s political association must be supported by a “compelling” state interest. See Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963). In the case sub judice, the LBE failed to demonstrate an overriding and compelling state interest supporting the scope of the subpoenas, or a substantial relationship between the records sought and any compelling interest. For these reasons, I would grant this writ application.


text:
    LOUISIANA DEMOCRATS, et al. v. The LOUISIANA BOARD OF ETHICS, et al.
    No. 2012-CC-0266.
    Supreme Court of Louisiana.
    April 20, 2012.
   JOHNSON, J.,

would grant the writ application for the following reasons.

_[¿This Court in Mary Moe, LLC v. Louisiana Board of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22, 30, held that although the legislature authorizes an administrative agency, like the Louisiana Board of Ethics (“LBE”), to issue subpoenas, the subpoenas “must be sufficiently limited in scope and specific in directive so that compliance will not be reasonable, overbroad, or unduly burdensome.” “Moreover the evidence sought by the subpoena must be reasonably relevant and material to the investigation’s lawfully purpose.” To exercise its subpoena power and obtain records, the LBE needs sufficient reasonable cause to believe that a violation of the CFDA has occurred. See also 18:1511.4.

In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the United States Supreme Court held that the state of Alabama could not require a nonprofit membership corporation to produce records including the names and addresses of all association members, as this was a denial of due process and a substantial restraint upon the members’ exercise of their right to freedom of association. The Court found Uthat there was a reasonable likelihood that the association itself, through diminished financial support and membership, might be adversely affected if production of their membership list was compelled, and the association had standing to complain of the production order, on behalf of its members. The Court found that compelled disclosure of membership in an organization engaged in advocacy of particular beliefs constitutes interference with freedom of assembly. The Court concluded that an order requiring an association to produce records, including names of its members, was invalid, as violating the constitutional right of freedom of association. The judgment of contempt and fine for noncompliance with such order was also invalid.

In Pollard v. Roberts, 283 F.Supp. 248 (E.D.Ark.1968), the United States District Court found that the subpoenas violated contributors’ First Amendment rights where there was no showing that the identities of party contributors and the amounts of their contributions were reasonably relevant to the prosecutor’s investigation of vote-buying. The court recognized that the State cannot compel a “sweeping and indiscriminate identification of all members of a group in excess of the State’s legitimate need for the information.”

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the United States Supreme Court held that although the limitations on political campaign contributions in the Federal Election Campaign Act of 1971 were generally constitutional, the Act’s limitation on election expenditures violated contributor’s First Amendment right to political expression.

In my view, the subpoenas duces tecum were not reasonably tailored to seek information and documents relevant and material to the LBE’s investigation. The LBE is prohibited from requiring any other documents or information beyond this scope as it violates the contributors’ First Amendment rights to participate in campaigns, to political speech and political association. In my opinion, the LBE, in lathis instance, failed to explain its “sufficient reasonable cause” for the subpoenas duces tecum, and therefore, has exceeded its constitutional authority.

The First Amendment protects a person or committee’s political speech, press, and political association, i.e., the participation in campaigns; as such, the compelled disclosures of documents, transactions, and communications relating to a person’s political association must be supported by a “compelling” state interest. See Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963). In the case sub judice, the LBE failed to demonstrate an overriding and compelling state interest supporting the scope of the subpoenas, or a substantial relationship between the records sought and any compelling interest. For these reasons, I would grant this writ application.


text:
    LOUISIANA DEMOCRATS, et al. v. The LOUISIANA BOARD OF ETHICS, et al.
    No. 2012-CC-0273.
    Supreme Court of Louisiana.
    April 20, 2012.
   JOHNSON, J.,

would grant the writ application for the following reasons.

| TThis Court in Mary Moe, LLC v. Louisiana Board of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22, 30, held that although the legislature authorizes an administrative agency, like the Louisiana Board of Ethics (“LBE”), to issue subpoenas, the subpoenas “must be sufficiently limited in scope and specific in directive so that compliance will not be reasonable, overbroad, or unduly burdensome.” “Moreover the evidence sought by the subpoena must be reasonably relevant and material to the investigation’s lawfully purpose.” To exercise its subpoena power and obtain records, the LBE needs sufficient reasonable cause to believe that a violation of the CFDA has occurred. See also 18:1511.4.

In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the United States Supreme Court held that the state of Alabama could not require a nonprofit membership corporation to produce records including the names and addresses of all association members, as this was a denial of due process and a substantial restraint upon the members’ exercise of their right to freedom of association. The Court found 12that there was a reasonable likelihood that the association itself, through diminished financial support and membership, might be adversely affected if production of their membership list was compelled, and the association had standing to complain of the production order, on behalf of its members. The Court found that compelled disclosure of membership in an organization engaged in advocacy of particular beliefs constitutes interference with freedom of assembly. The Court concluded that an order requiring an association to produce records, including names of its members, was invalid, as violating the constitutional right of freedom of association. The judgment of contempt and fine for noncompliance with such order was also invalid.

In Pollard v. Roberts, 283 F.Supp. 248 (E.D.Ark.1968), the United States District Court found that the subpoenas violated contributors’ First Amendment rights where there was no showing that the identities of party contributors and the amounts of their contributions were reasonably relevant to the prosecutor’s investigation of vote-buying. The court recognized that the State cannot compel a “sweeping and indiscriminate identification of all members of a group in excess of the State’s legitimate need for the information.”

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the United States Supreme Court held that although the limitations on political campaign contributions in the Federal Election Campaign Act of 1971 were generally constitutional, the Act’s limitation on election expenditures violated contributor’s First Amendment right to political expression.

In my view, the subpoenas duces tecum were not reasonably tailored to seek information and documents relevant and material to the LBE’s investigation. The LBE is prohibited from requiring any other documents or information beyond this scope as it violates the contributors’ First Amendment rights to participate in campaigns, to political speech and political association. In my opinion, the LBE, in lathis instance, failed to explain its “sufficient reasonable cause” for the subpoenas duces tecum, and therefore, has exceeded its constitutional authority.

The First Amendment protects a person or committee’s political speech, press, and political association, i.e., the participation in campaigns; as such, the compelled disclosures of documents, transactions, and communications relating to a person’s political association must be supported by a “compelling” state interest. See Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963). In the case sub judice, the LBE failed to demonstrate an overriding and compelling state interest supporting the scope of the subpoenas, or a substantial relationship between the records sought and any compelling interest. For these reasons, I would grant this writ application.