text:
    Danshaye WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6452.
    District Court of Appeal of Florida, First District.
    March 12, 2012.
    Sheila Callahan, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s conviction and fifteen-year Prison Releasee Reoffender sentence for burglary of a dwelling. However, we reverse the “Judgment for Fines, Costs, Fees and Surcharges” because the trial court failed to delineate the discretionary fine(s) when announcing at sentencing that it would impose $1,522.50 in costs and fines. Discretionary fines must be orally pronounced at sentencing. See Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011); Smiley v. State, 704 So.2d 191, 195 (Fla. 1st DCA 1997). On remand, the court may reimpose the assessments after giving Appellant notice and following the proper procedure. See Oliver v. State, 75 So.3d 349, 350 (Fla. 1st DCA 2011).

AFFIRMED in part; REVERSED in part; REMANDED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Steven Joe GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3043.
    District Court of Appeal of Florida, First District.
    March 12, 2012.
    Steven Joe Griffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Steven Joe Griffin is hereby afforded a belated appeal from the judgment and sentence in Santa Rosa County case number 2006-CF-1759. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

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

PETITION GRANTED.

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


text:
    Wesley J. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1095.
    District Court of Appeal of Florida, First District.
    March 13, 2012.
    Wesley J. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Sam GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1045.
    District Court of Appeal of Florida, First District.
    March 13, 2012.
    Sam Grifñn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5) and (6)(c).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Carlos MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1035.
    District Court of Appeal of Florida, First District.
    March 13, 2012.
    Carlos Mitchell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Randell COLSTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0902.
    District Court of Appeal of Florida, First District.
    March 13, 2012.
    Randell Colston, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Louetter Booth RUCKER, Former Wife, Appellant, v. Robert Malcolm RUCKER, Husband, Appellee.
    No. 1D10-6117.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    William Bruce Muench, Jacksonville, for Appellant.
    Charles E. Willmott, Jacksonville, for Appellee.
   PER CURIAM.

The former wife appeals a final judgment dissolving the parties’ 12-1/2-year marriage, awarding her transitional bridge-the-gap alimony in the amount of $1,100.00 per month for a period of 18 months, and denying her request for permanent periodic alimony. In pertinent part, she contends that the trial court abused its discretion in applying the factors in section 61.08(2), Florida Statutes (2010), which are to be considered in resolving alimony issues. Given the evidence that the trial court miscalculated both parties’ monthly net incomes, and our inability to determine whether the court considered all relevant factors in section 61.08(2) before denying permanent periodic alimony, we reverse the trial court’s determination of income and remand for income recalculations and findings of fact.

The first alleged error is the court’s adding the parties’ monthly retirement income to their monthly net incomes after the parties themselves had included their military retirement in their income calculations. The result was that the court included military retirement twice in calculating net income. Specifically, in properly considering “[a]ll sources of income available to either party” pursuant to section 61.08(2)(i), the trial court made findings concerning the former wife’s net income per month, but then the court added her military retirement in the amount of $1,124.00 a month. By including her military retirement twice, the court found the former wife’s net monthly income is higher than the record would demonstrate. The court calculated the former husband’s net income per month and then added his monthly military retirement, apparently unaware that the former husband had already included his military retirement.

In deciding whether to award alimony or maintenance, the trial court “shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” § 61.08(2), Fla. Stat. (2010); Adams v. Adams, 604 So.2d 494, 495-96 (Fla. 3d DCA 1992) (stating that in determining whether to award permanent periodic alimony, the trial court must consider the requesting spouse’s needs and the other spouse’s ability to pay). In its seminal decision in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the Florida Supreme Court stated the purpose of permanent periodic alimony is “to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.” Id. at 1201; Zeigler v. Zeigler, 635 So.2d 50, 53-54 (Fla. 1st DCA 1994). It could very well be (and the record does not indicate otherwise) that relying on the inflated monthly income figure for the former wife, the trial court concluded that she failed to prove an actual need for permanent periodic alimony. The fact that the court inflated the former husband’s income as well could affect the finding concerning his ability to pay alimony. We direct the court on remand to recalculate the parties’ respective net monthly incomes. See Soto v. Soto, 974 So.2d 403 (Fla. 2d DCA 2007) (reversing trial court’s determination as to former husband’s income available for alimony and child support and remanding for recalculations).

On the issue of alimony, section 61.08(2)(f) requires the trial court to consider, inter alia, “[t]he contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.” The court found that each party contributed equally during their marriage, and each assisted the other “somewhat equally” in their careers. The second alleged error is the court’s failure to address the undisputed evidence that the former wife made considerable financial and career sacrifices in moving from South Carolina to Florida to marry the former husband in 1997. The former husband made it a condition of their getting married that the former wife move to Florida. The former wife testified that in South Carolina, she had her own home to live in and stable employment at Blue Cross/Blue Shield with retirement benefits. She had to remove thousands of dollars from her pension fund to facilitate her move to Florida and to pay marital bills. The former wife’s employment situation in Florida has been less favorable, and the trial court found that her current earning capacity at age 59 is consistent with her current income. Her present employer imposed a 10% pay cut in Fall 2010, does not allow overtime, and offers her no retirement plan. Nothing in the record indicated, nor did the trial court find, that the former wife’s employment circumstances are likely to improve over the 18-month duration of bridge-the-gap alimony. When the former wife was asked at the dissolution hearing why she did not return to live in her home in South Carolina, she testified that no appropriate jobs are available for her in that region. The former husband testified that when he and the former wife decided to marry in 1997, they both knew she was going to rely on his larger income for financial support.

The former husband, in his early 60s, has steady employment. In the final judgment, the court correctly stated that the former husband has experienced three heart attacks, has stents in his heart, and takes heart medication. No record evidence indicated, however, that the former husband’s health status had adversely affected his employment.

Although the former husband’s monthly income is substantially higher than the former wife’s, the trial court made him responsible for a considerable portion of the parties’ marital debts. While the former wife contends that she cannot support herself without permanent periodic alimony, the former husband responds that his greater share of the substantial marital debt renders him unable to pay permanent alimony. Findings of fact are especially important in “gray area” marriages like the parties’ 12-1/2-year marriage, where no presumption exists in favor of or against permanent alimony. Biskie v. Biskie, 37 So.3d 970, 972 (Fla. 1st DCA 2010). Because the record does not disclose whether the trial court considered the evidence of the former wife’s alleged financial and career sacrifices in moving to Florida, we remand for findings of fact relating to the parties’ respective contributions to the marriage and career building.

On recalculating the parties’ incomes and making adequate findings to allow meaningful appellate review, the trial court may reconsider the former wife’s request for permanent periodic alimony to meet her long-term financial needs. We REVERSE the trial court’s determination of the parties’ incomes and REMAND for recalculation of incomes and for findings of fact relating to section 61.08(2)(f).

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    Tyrone M. HOWARD, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D11-4453.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Tyrone M. Howard, pro' se, for Petitioner.

      Sarah J. Rumph, General Counsel, and Anthony Andrews, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Consistent with the Florida Parole Commission’s proper concession of error, the petition for writ of certiorari is granted in part and the circuit court’s order denying mandamus relief is quashed. The matter is remanded to the circuit court for further proceedings concerning petitioner’s claim that the Commission did not explain its reasons for finding he was a poor candidate for parole release in its most recent order. See Alday v. Florida Parole Comm’n, 58 So.3d 327 (Fla. 1st DCA 2011). We otherwise deny the petition.

GRANTED in part and DENIED in part.

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Michael T. FREDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4226.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Michael T. Fredrick, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a rule 3.800(a) motion arguing that the trial court improperly retained jurisdiction over half of his sentences when it had no authority to retain jurisdiction over more than a third of his sentences. The trial court denied the motion but did not attach the judgment and sentence, the transcript, or any other documents which identify the date on which the crimes took place. The date the crimes occurred is crucial because during only a brief period of time possibly pertinent to this case were trial courts authorized to retain jurisdiction over one-half of a defendant’s sentence. Compare § 947.16(3), Fla. Stat. (1981), with § 947.16(3), Fla. Stat. (Supp.1982). On remand, documents conclusively refuting the appellant’s claim should be attached to any order denying the claim or, if the appellant’s claims have merit, the trial court should grant relief.

REVERSED AND REMANDED with directions.

BENTON, C.J., WOLF, and VAN NORTWICK, JJ., concur.


text:
    Leonard Terrell WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6072.
    District Court of Appeal of Florida, First District.
    March 14, 2012.

      Leonard Terrell Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the December 8, 2010, order denying the second motion for postconviction relief in Bradford County Circuit Court case number 04-2009-CF-000296-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Rudolph ANDREWS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5442.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Rudolph Andrews, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the May 26, 2011, judgment and sentence in Duval County Circuit Court case number 16-2009-CF-012790-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Melissa McEATHRON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4735.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Melissa McEathron, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the judgments and sentences in Duval County Circuit Court case numbers 16-2009-CF-008114-AXXX-MA and 16-2009-CF-008115-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Nathan COLLETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6187.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Nathan Collett, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the June 30, 2011, judgment and sentence in Duval County Circuit Court case number 16-2010-CF-005407-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Stephen L. FURNEY, II, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6104.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Stephen L. Furney, II, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the April 12, 2011, judgment and sentence in Escambia County Circuit Court case number 1995-CF-002065-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

DAVIS, CLARK, and ROWE, JJ., concur.


author: GROSS, J.

text:
    Dr. Philip COLAIZZO, M.D., Appellant, v. OFFICE OF CRIMINAL CONFLICT AND CIVIL REGIONAL COUNSEL, Appellee.
    No. 4D10-2422.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Glenn H. Mitchell, West Palm Beach, for appellant.
    Antony P. Ryan, Regional Counsel and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.
   GROSS, J.

This case presents this question: As between two agencies funded by state government, which should bear the responsibility for an expert witness fee incurred in a deposition taken in a termination of parental rights proceeding? In the absence of any statutory direction, we hold that the Florida Rules of Juvenile and Civil Procedure apply to make the agency seeking the deposition responsible for payment.

Dr. Philip Colaizzo, the medical director of a Child Protection Team, timely appeals an order denying his motion to compel the Office of Criminal Conflict and Civil Regional Counsel (“ORC”) to pay him an expert witness fee for a deposition, under the ORC’s subpoena, in a Chapter 39 proceeding. The Department of Children and Families initiated termination of parental rights proceedings against a mother. The ORC represented the indigent mother. The proceedings resolved before reaching a final hearing. Colaizzo moved to compel the ORC to pay him the fee. The trial court held an evidentiary hearing on the motion.

The evidence at the hearing established that Colaizzo was a board-certified pediatrician in private practice. He served as the medical director for the Child Protection Team, an independent, non-profit organization investigating allegations of child abuse, funded primarily by the state, and operating under the Florida Department of Health. See § 39.303, Fla. Stat. (2008) (authorizing the creation of child protection teams). Colaizzo entered into a contract with the Department formalizing his duties as the Team’s medical director. Co-laizzo oversaw all of the Team’s contracts, its budget, and its compliance with both internal and Department policies. He also trained physicians, nurses, and others in the community. Colaizzo did not see patients as the medical director, which was a purely administrative role. The state compensated Colaizzo for his work as medical director.

In addition to being the Team’s medical director, Colaizzo also functioned as an independent contractor who provided different services for the Team. In his capacity as an independent contractor under the personal services contract, Colaizzo performed medical examinations, worked with the Direct Response Team, wrote consultations, and gave lectures. The Team paid Colaizzo separately for this work. This arrangement was effected by a separate personal services contract between Colaiz-zo’s practice and the Team. One such contract was offered in evidence.

An attachment to the personal services contract set out Colaizzo’s responsibilities and duties. The first listed responsibility was to “provide consultations and medical evaluations for children alleged to be abused/neglected.” The last listed responsibility was to be “responsible for providing depositions and expert court testimony when appropriate.”

With regard to the instant dependency proceeding, Colaizzo conducted an examination of one of the mother’s children and rendered an expert opinion. Colaizzo testified that his examination of the child was not in his capacity as medical director; rather, it was in his capacity as an independent contractor. Following the examination, the Foster Children’s Project, the attorney ad litem for one of the children, filed a witness list in which it named Co-laizzo as an expert witness.

The ORC subpoenaed Colaizzo to appear at an expert witness deposition. Colaizzo appeared and testified at the deposition. The doctor sent a bill for the deposition to ORC, because it was the entity that subpoenaed him. For this deposition, Colaiz-zo charged $200 per hour for a total of $650. ORC refused to pay Colaizzo, but acknowledged at the hearing that $650 was a reasonable fee.

Colaizzo was not paid by the Team for his appearance at the deposition. Alison Hitchcock, the executive director of the Team, corroborated that the Team would not pay Colaizzo for the deposition and expert testimony given at the behest of the ORC. Hitchcock sent the ORC a bill for $650 on Colaizzo’s behalf.

The trial court denied Colaizzo’s motion to compel payment after the hearing.

Section 89.0133, Florida Statutes (2008), controls witness fees in Chapter 39 proceedings. It provides: “In all proceedings under this chapter, no court fees shall be charged against, and no witness fees shall be allowed to, any party to a petition or any parent or legal custodian or child named in a summons. Other witnesses shall be paid the witness fees fixed by law.” (Emphasis added).

The reference to “fixed by law” in section 39.0133 compels a search of other statutes, but none answer the question of how this expense should be allocated. First, it is important to note that “termination of parental rights ‘cases are not criminal in nature. They are civil proceedings which happen to affect the substantial interests of the parents and children involved.’ ” N.S.H. v. Fla. Dep’t of Children & Family Serv., 843 So.2d 898, 902 (Fla.2003) (quoting Ostrum v. Dep’t of Health & Rehab. Servs., 663 So.2d 1359, 1361 (Fla. 4th DCA 1995)). Section 92.231(2), Florida Statutes (2008), provides that an expert witness who has “testified in any cause shall be allowed a witness fee” that “shall be taxed as costs.” Here, the case was resolved before trial, so there was no “prevailing party” entitled to tax costs. It is doubtful that the expert witness fee could be taxed as a cost where the witness did not testify at trial and his deposition was not used at a trial. See Family Dollar Stores of Fla., Inc. v. Jones, 867 So.2d 1278 (Fla. 4th DCA 2004). Colaizzo does not seek recovery under section 92.142, Florida Statutes (2008), a statute that would entitle him to $5 per day and 6 cents per mile. We have been able to find no other statute, and the parties have not cited to any, which would address the allocation of costs presented in this case.

In the absence of a statute directed at the issue of payment, we look to rules of procedure for an answer. Colaizzo contends he was entitled to fees as an expert witness under Florida Rule of Procedure 1.390(c). That rule provides, in relevant part:

An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree.... Any reasonable fee paid to an expert or skilled witness may be taxed as costs.

Fla. R. Civ. P. 1.390(c).

Florida Rule of Juvenile Procedure 8.245(g)(2)(D) brings Rule 1.390(c) into the juvenile procedure rules. Contained in Part II of the Rules, involving dependencies and termination of parental rights, rule 8.245(g)(2)(D) reads:

Except as otherwise provided by this rule, the procedure for taking the deposition, including the scope of the examination and obtaining protective orders, shall be the same as that provided by the Florida Rules of Civil Procedure.

The ORC argues that Rule 1.390(c) does not apply to Chapter 39 proceedings because it concerns entitlement to fees, not “procedure” within the meaning of Rule 8.245(g)(2)(D). This reading of the juvenile rule is too narrow; the rules of civil procedure address the cost of an expert deposition as an element of procedure, since money is the fuel that allows the deposition to occur. The question of who is financially responsible for an expert’s deposition is a question of civil procedure. Thus, Rule 1.280(b)(4)(A)(ii) permits an expert to “be deposed in accordance with rule 1.390.” Specifically addressing the issue of payment, Rule 1.280(b)(4)(C) provides:

Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivision[ ] (b)(4)(A) ... of this rule [permitting depositions].

The procedure for determining payment is contained in Rule 1.390(c).

The ORC points to section 39.303(l)(e), Florida Statutes (2008), which provides that one of the services that a child protection team “shall be capable of providing” includes “[e]xpert medical, psychological, and related professional testimony in court cases.” However, to describe the scope of an obligation is not to delineate the financial responsibility for the obligation in all situations.

Under the rules of procedure, the ORC is responsible for the expert witness fee. We therefore reverse and remand the case to the circuit court to hold a hearing under Rule 1.390(c).

CIKLIN and LEVINE, JJ., concur.

      . Because it was not raised below, we do not reach the issue of whether this executive director of a child protection team was at all times an "employee of the state” within the meaning of § 92.142(2), Florida Statutes (2008), which would place limitations on his ability to obtain a witness fee if his testimony at the discovery deposition amounted to an appearance "as an official witness” under that section.


text:
    Penn STEUERWALD, individually and as personal representative of the Estate of Clinton F. Steuerwald, and Brent Steuerwald, individually, Appellants, v. Robert QUALLS, individually and as personal representative of the Estate of Robert J. Carroll, Steve Orlando, individually, and Jon Steinburg, individually, Appellees.
    No. 4D10-1118.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Theodore DApuzzo and Keith T. Grumer of Grumer & Macaluso, P.A., Fort Lauderdale, for appellants.
    Scott A. Weiss of Selzer & Weiss, Fort Lauderdale, for appellee Robert Qualls and Mark R. Manceri of Mark R. Manceri, P.A., Fort Lauderdale, for appellee Steve Orlando and John Steinburg.
   PER CURIAM.

Affirmed. See Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002 (Fla. 5th DCA 2005); Newman v. Newman, 766 So.2d 1091 (Fla. 5th DCA 2000); Cates v. Fricker, 529 So.2d 1253 (Fla. 2d DCA 1988).

CIKLIN, GERBER and LEVINE, JJ., concur.


text:
    CITY OF RIVIERA BEACH, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-4522.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.

      Christy L. Goddeau of The Law Offices of Glen J. Torcivia & Associates, P.A., West Palm Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for respondent.
   GROSS, J.

We deny the City of Riviera Beach’s petition for writ of certiorari seeking to quash an order of the circuit court directing it to comply with an investigative subpoena of the office of the state attorney. Among other things, the subpoena would require the city to provide the names of confidential informants used by the city for a one year period. The office of the state attorney is entitled to obtain the disputed information under section 27.04, Florida Statutes (2010). See State v. Investigation, 802 So.2d 1141 (Fla. 2d DCA 2001); Imparato v. Spicola, 238 So.2d 503 (Fla. 2d DCA 1970). Thus, there is no departure from the essential requirements of law.

No statutory or common law privilege limits the state attorney’s ability to obtain the information. We reject the City’s contention that a privilege surrounding confidential informants is applicable here. Both Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and Florida Rule of Criminal Procedure 3.220(g)(2), involve the issue of the “Government’s privilege to withhold from disclosure” to criminal defendants “the identity of persons who furnish information of violations of law to officers.” Neither Ro-viaro nor rule 3.220(g)(2) involves a disclosure from one law enforcement agency to another pursuant to an investigative subpoena. The issue here is not public disclosure nor the release of information to a person or entity that could interfere with an ongoing investigation, but the transfer of information from one law enforcement agency to another.

We also reject the City’s contention that the investigative subpoena implicates Florida’s right of privacy. See Fla. Const., Art. I, § 28. Before Florida’s right to privacy attaches, “a reasonable expectation of privacy must exist.” Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 547 (Fla.1985). Confidential informants do not have a reasonable expectation of privacy in shielding their identity from the state attorney’s office, the law enforcement agency that would be in charge of the prosecution should the information provided by an informant lead to criminal charges. Both the state attorney’s office and the City are bound to maintain the confidentiality of the records. See § 914.28, Fla. Stat. (2010).

HAZOURI and CIKLIN, JJ„ concur.


author: GERBER, J.

text:
    Richard PHILEMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3871.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals the circuit court’s order revoking his probation on the grounds that he willfully failed to pay restitution and supervision costs as conditions of his probation. He argues he proved that he was unable to pay restitution and supervision costs. See § 948.06(5), Fla. Stat. (2010) (“In any hearing in which the failure of a probationer ... to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer ... asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer ... to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so.”).

We have reviewed the transcript from the violation of probation hearing and conclude that the defendant met his burden of proof. See Costello v. State, 567 So.2d 1032, 1033 (Fla. 4th DCA 1990) (“[A]ppel-lant’s uncontroverted testimony [regarding his inability to pay] cannot arbitrarily totally be rejected ... and here, there is nothing in the record to support a conclusion that appellant ought not be believed.”) (citation omitted).

Based on the foregoing, we reverse the order revoking the defendant’s probation. We remand for the circuit court to vacate the defendant’s resulting sentences and to reinstate the defendant’s probation with all previously-ordered conditions.

Reversed and remanded.

MAY, C.J., and DAMOORGIAN, J„ concur.


text:
    Angelica Fregona PARRIS, Appellant, v. Aldo Walter SILVEIRA and Joseph Bryan Parris, Appellees.
    No. 4D11-3006.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Angelica Fregona Parris, Boynton Beach, pro se.
    No brief filed for appellees.
   PER CURIAM.

Appellant appeals the trial court’s order finding her in civil contempt. Because the civil contempt sanction did not seek to compel compliance with an existing order, we find that the order in this case exceeded the allowable scope of a trial court’s civil contempt powers. As such, we reverse.

Appellant gave birth to a minor child while she was married to Joseph Parris. Appellant filed for divorce. Appellant’s petition for dissolution of marriage and Parris’s answer indicated the marriage was one “with no dependent or minor children,” and the divorce court entered a final judgment of dissolution.

Subsequently, Aldo Silveira filed a paternity action against appellant. Appellant moved to dismiss the paternity action, arguing that Parris was the minor child’s legal father. The trial court in the paternity action agreed that the presumption of legitimacy applied and granted appellant’s motion to dismiss.

Afterwards, the trial court retrieved the file from the earlier, closed divorce case and discovered appellant’s representations in that case that there were no dependent or minor children. The trial court issued an order to show cause why appellant should not be held in contempt. At the hearing, appellant maintained that she had mistakenly filed the wrong form in the divorce action. The trial court found that appellant “intentionally and willfully filed false documents under oath in the dissolution of marriage case and provided false testimony ... in the paternity case.” As a result, the court found her in direct and indirect civil contempt for which she would be incarcerated for six months or until the contempt was purged. To purge her contempt, appellant was required to arrange for a sample of her minor child’s DNA to be compared to Silveira’s DNA. The court vacated its earlier order granting appellant’s motion to dismiss the paternity action.

“[T]he purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court.” Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985) (emphasis removed); see also Fla. Fam. L.R.P. 12.615; Parsons v. Wennet, 625 So.2d 945, 947 (Fla. 4th DCA 1993) (“Civil contempt consists of failing to do something ordered to be done by a court or judge for the benefit of the opposing party.”). Unlike a criminal contempt sanction, “[cjivil contempt is not intended to punish.” Elliott v. Bradshaw, 59 So.3d 1182, 1184 (Fla. 4th DCA 2011).

In the present case, the trial court found appellant in civil contempt because it believed she had lied in the closed divorce action by filing a petition suggesting that no children were born during her marriage. It appears further that the civil contempt finding was based on appellant’s refusal to admit to the alleged lies at the contempt hearing. Appellant was not subject to any order of the court when she was found in civil contempt. Thus, the sanction here was not “coercive in nature.” Gregory v. Rice, 727 So.2d 251, 253 (Fla.1999); see also H.K. Dev., LLC v. Greer, 32 So.3d 178, 185 (Fla. 1st DCA 2010) (holding that civil contempt sanctions were improper, in part, because they “cannot— and are not designed to-compel performance of any act yet to be taken”). As a result, based on the unique facts of this case, we reverse the civil contempt order under review.

Reversed and remanded for proceedings consistent with this opinion.

GROSS, CIKLIN and LEVINE, JJ., concur.

      . We accordingly reverse that part of the order vacating the trial court's order granting appellant’s motion to dismiss the paternity action. By doing so, we express no opinion as to whether the presumption of legitimacy was correctly applied because that question is not directly before us.


author: WARNER, J.

text:
    S.L., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D11-3844.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Antony P. Ryan, Regional Counsel, and Crystal K. McBee, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Families.
    Hillary Kambour, Tavares, for appellee Guardian Ad Litem Program.
   WARNER, J.

In challenging the final judgment terminating her rights, appellant mother claims that the trial court’s finding that termination was the least restrictive means of protecting the child from harm, as required by Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565 (Fla.1991), was not supported by competent substantial evidence. In particular, she claims that because the trial court did not terminate her rights to this child’s half-siblings, termination was not necessary to protect S.A. We disagree, as the trial court appropriately treated each child based upon her individual circumstances.

For support of her position that the trial court could not find that termination was the least restrictive means where her rights to her other children were not terminated, the mother cites to In re G.R., 793 So.2d 988 (Fla. 2d DCA 2001). There, the court held that termination of the mother’s rights to her older children did not meet the least restrictive means test when the mother had made progress on rehabilitating herself, had frequent contact with the children, and the Department had not sought to terminate her rights to a child born during the dependency of the older children.

The facts of this case are entirely different. The mother had not made any progress on her case plan as of the final judgment; she had not contacted S.A. for over a year; and she was out of state. The Department had not sought to proceed with termination of her rights to her older children because they were in a stable environment with their father. That father was also taking care of S.A., who was not his child but the child of a father serving a lengthy prison term. The Department sought to terminate both the father’s and mother’s rights to S.A. in order to provide permanency to the child. The trial court evaluated each child individually with respect to their needs and the least restrictive means test, as the court was required to do. In re K.A., 880 So.2d 705, 710 (Fla. 2d DCA 2004) (“[T]he trial court must individually determine whether the termination of parental rights to each child is permitted by the statute, is the least restrictive means to protect that child, and is in that child’s manifest best interests.” (emphasis added)). The court committed no error.

We affirm as to all other issues raised.

STEVENSON and CONNER, JJ., concur.


text:
    Dandal DAMPIER, Appellant, v. MORGAN TIRE & AUTO, LLC, etc., Appellee.
    No. 5D11-1201.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.

      Michael P. Kelton of Paul & Elkind, P.A., DeLand, for Appellant.
    John T. Conner of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellee.
   PER CURIAM.

Dandal Dampier appeals a final summary judgment entered against him in a trip and fall case. We affirm.

Dampier visited Morgan Tire & Auto, LLC d/b/a Tires Plus (“Tires Plus”) on Enterprise Road in Orange City, Florida, to get an oil change and have the tires on his vehicle rotated. While Dampier’s vehicle was being serviced, he decided to walk to a McDonald’s restaurant down the street. To access a public sidewalk that runs in front of Tires Plus, he walked across a raised landscape planting bed. He successfully negotiated the planting bed on the way to the McDonald’s, but on his return, tripped on a stump in the planting bed and fell headlong into the parking lot, resulting in various injuries.

Dampier brought suit against Tires Plus, alleging that the planting bed was part of a “clearly defined walking path,” that the company had failed to inspect and maintain in a reasonably safe condition by removing stumps within the walking path, and that it had failed to warn of the dangerous condition created thereby. In its answer, Tires Plus denied that the planting bed was a walking path, denied any negligence, and asserted a number of affirmative defenses.

Tires Plus moved for summary judgment, arguing that it had no duty to warn of the stump in the planting bed because the dangerous condition created thereby was open, obvious and apparent. The company also argued it had no duty to make the planting bed safe for walking, as the bed had not been designed for that purpose.

Depositions submitted by the parties showed that Tires Plus fronts on Enterprise Road and has a parking lot that faces the street. The parking lot is bordered by a raised planting bed that runs the length of the property, parallel to Enterprise Road. The planting bed is eight or ten feet wide, is bordered by a raised curb, and is mulched and somewhat sparsely filled with bushes. On the far side of the planting bed is a public sidewalk that also runs parallel to the road. The front door of the business opens to the parking lot, but there is no sidewalk linking the front door of the business to the public sidewalk running along the road. Instead, patrons of Tires Plus wishing to access the public sidewalk must walk to one side of the property and out the driveway. The only other alternative is to walk across the parking lot, step over the curb and walk through the mulched planting bed.

The trial judge entered final summary judgment in favor of Tires Plus. The order explained:

1. The [cjolor picture of the portion of hedge where Plaintiff tripped (which is attached as an [ejxhibit to Mr. Robert O’Donnell’s deposition) clearly shows that the stump where the Plaintiff tripped was part of the hedge.
2. The stump over which Plaintiff tripped in the incident giving rise to this litigation is so open and obvious as to not constitute a dangerous condition as a matter of law.

This Court reviews de novo the grant of summary judgment in favor of an appellee. Krol v. City of Orlando, 778 So.2d 490, 491 (Fla. 5th DCA 2001). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). While issues of negligence and probable cause are ordinarily questions for the jury if reasonable men can arrive at different conclusions, they become questions of law if the facts point to but one possible conclusion. Olson v. Crowell Plumbing & Heating Co., 48 So.3d 139, 143 (Fla. 5th DCA 2010); Cassel v. Price, 396 So.2d 258, 260 (Fla. 1st DCA 1981).

Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care. Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005). The open and obvious nature of a hazard may discharge a landowner’s duty to warn, but it does not discharge the landowner’s duty to maintain the property in a reasonably safe condition. See Pittman v. Volusia Cnty., 380 So.2d 1192 (Fla. 5th DCA 1980).

Nonetheless, some conditions are so obvious and not inherently dangerous that they can be said, as a matter of law, not to constitute a dangerous condition, and will not give rise to liability due to the failure to maintain the premises in a reasonably safe condition. See, e.g., Schoen v. Gilbert, 436 So.2d 75 (Fla.1983) (holding difference in floor levels is not inherently dangerous condition, even in dim lighting, so as to constitute failure to use due care for safety of person invited to premises). Other conditions are dangerous, but are so open and obvious that an invitee may be reasonably expected to discover them and to protect himself. See, e.g., Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1311 (Fla.1986). The rule applied in these circumstances is to absolve the landowner of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness. Id.; Etheredge v. Walt Disney World Co., 999 So.2d 669, 672 (Fla. 5th DCA 2008); Aguiar v. Walt Disney World Hospitality, 920 So.2d 1233, 1234 (Fla. 5th DCA 2006).

Landscaping features are generally found not to constitute a dangerous condition as a matter of law. See, e.g., K.G. v. Winter Springs Cmty. Evangelical Congregational Church, 509 So.2d 384 (Fla. 5th DCA 1987) (holding tree with surrounding brick border on which child struck his knee while playing football was not a dangerous condition or concealed peril; therefore, church had no duty to warn or take other precautionary measures). Moreover, a number of cases have held that a landowner has no liability for falls which occur when invitees walk on surfaces not designed for walking, such as planting beds. See City of Melbourne v. Dunn, 841 So.2d 504 (Fla. 5th DCA 2003); Taylor v. Universal City Prop. Mgmt., 779 So.2d 621 (Fla. 5th DCA 2001); Prager v. Marks Bros., 483 So.2d 881 (Fla. 3d DCA 1986).

In Taylor, a woman twisted and injured her knee when she stepped on the edge of one of a series of tree planters running the length of a street at Universal Studios. A metal rim circled the cut-out for the planter. The plaintiff saw both the tree and the planter before her fall, and was not looking where she was going at the time she fell. In affirming a summary judgment entered in favor of the theme park, this Court explained:

The law provides that some injury-causing conditions are simply so open and obvious that they can be held as a matter of law not to give rise to liability as dangerous conditions. Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990). See also Rosenfeld v. Walt Disney World Co., 651 So.2d 811 (Fla. 5th DCA 1995); Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA 1992). Important to the appellee’s motion for summary judgment was the attachment of photographs depicting these planters. Taylor testified in her deposition that the condition depicted in the photographs is substantially the same as the condition she encountered; the only uncertainty being whether the plantings around the base of the palm consisted of flowers or greenery. These photographs demonstrate two things dramatically: first, that the obstacle represented by the six-foot diameter planter with the palm tree in the middle and the planting all around represents a glaringly open and obvious obstacle for anyone walking either on the walkway or the street; and second, that Taylor knew, or should have known, that she was walking into a planter containing shrubbery and/or flowers with a large tree in the middle, all planted in dirt. Taylor appears to concede all this; she contends, however, that Universal is liable for her injury because it was not obvious that there was a change in the surface level between the sidewalk and the dirt of approximately three inches and it was this three-inch change in the ground level that caused her to fall. The trial court concluded, however, and we agree, that anyone who walks into a planter containing a Washington palm, greenery and/or flowers and dirt is held to know that this is a hazard to walking. The precise nature of the hazard need not be observable. Such a change in level caused by the change in materials and surface texture and the effect on footing is to be expected.

779 So.2d at 622 (emphasis added).

In Dunn, a woman fell when she walked in or along the raised timbers of a large planting bed located near a park exit. She thought the strap of her sandal may have caught on a large nail that had become dislodged from the landscaping timbers. This Court held that the City of Melbourne could not be held liable for her fall because the City had no duty to make the planter safe for walking, as it was not foreseeable that the surface would be used for walking, a function for which it was not designed. 841 So.2d at 505. This Court also felt that the condition was so open and obvious that, as a matter of law, it could not be deemed a hidden dangerous condition. Id,. The opinion reasoned:

An owner of land is not required to give an invitee warning of an obvious danger, and is entitled to assume an invitee will perceive something obvious. Moultrie v. Consolidated Stores International Corp., 764 So.2d 637 (Fla. 1st DCA 2000). Some conditions are so open and obvious, so common and innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition. Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA 1992). In the instant case, the photographs in the record, attached hereto, show that the gap between the intersecting planks was a blatant, yawning separation, and Dunn admitted that if she had been looking, she would have seen it. As in Taylor v. Universal City Property Management, 779 So.2d 621, 622 (Fla. 5th DCA 2001), the 21x7x1 foot planter was a “glaringly open and obvious obstacle” for anyone walking out of the park, and Dunn “knew, or should have known” that she mounted and walked on a foot-high planter built of timbers and filled with mulch and plantings. As in Taylor, 779 So.2d at 622, we conclude that anyone walking across this planter “is held to know that this is a hazard to walking.” Because Dunn had “ample notice of an open and obvious hazard,” she cannot blame the city for her fall. Id.
Furthermore, the city had no duty to make the planter safe for walking, a function for which it was not designed. Compare, McCain v. Florida Power Corporation, 593 So.2d 500 (Fla.1992); Acree v. Hartford South Inc., 724 So.2d 183 (Fla. 5th DCA 1999). The city had no reason to suspect that a grown woman would consider the planter an exit path, or use it to perform a sort of tightrope act, instead of proceeding to the parking lot by simply walking around it along the adjacent path.

Id.

Finally, in Prager, the Third District found no negligence on the part of a business owner constructing a large flowerbox along the street. The plaintiff slipped on the dirt and fell while walking in the flow-erbox. The Third District affirmed a final summary judgment entered in favor of the business owner, explaining that “the unfinished flowerbox did not represent, in any sense, a dangerous condition for which a warning, as urged, was necessary.” 483 So.2d at 881.

In this case, Dampier was injured when he walked through a large planting bed to get from a sidewalk outside the premises back to the parking lot of Tires Plus. As in Dunn, Taylor and Prager, the planting bed, and the stump within the planting bed, did not constitute a dangerous condition that could give rise to liability on the part of Tires Plus due to the alleged failure to maintain the premises in a reasonably safe condition. Likewise, there was no duty to warn Dampier of the danger of walking in the planting bed, because the planting bed and stump did not constitute a dangerous condition when used as a planting bed and not for walking.

AFFIRMED.

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


text:
    PARK AVENUE TOWN CENTER, LLC, etc., et al., Petitioners, v. M & I MARSHALL & ISLEY BANK, Respondents.
    No. 5D12-61.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    Gretchen R.H. Vose, Wade C. Vose and Philip S. Kaprow of Vose Law Firm, LLP, Winter Park, for Petitioners.

      Andrew M. Brumby and James A. Tim-ko of Shutts & Bowen, LLP, Orlando, for Respondents.
   PER CURIAM.

We deny the instant petition for writ of certiorari without prejudice to Petitioner’s right, should Petitioner so choose, to pursue an amendment to the trial court’s December 8, 2011 order, to the extent that the order improperly required Petitioner to make its first payment only eight days after service of the order. See § 702.10(2)(e), Fla. Stat. (2010) (“The order shall be served upon the mortgagor no later than 20 days before the date specified for the first payment.”).

PETITION DENIED.

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

      . We note that Respondent has conceded this error in the instant proceeding.


text:
    Ansen BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4783.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2012.

      Alfreda D. Coward of Coward & Coward, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion to Review Order Denying Post-Trial Release Pending Appeal

PER CURIAM.

Appellant seeks review of the trial court’s order denying him an appeal bond pending review of his conviction, pursuant to Florida Rule of Appellate Procedure 9.140(h)(4). We reverse and remand for further proceedings.

Appellant was convicted of the misdemeanor of aiding an unmarried runaway and sentenced to 364 days in county jail. He moved for release pending appeal. In his motion he asserts that, if this matter is considered in regular course, he will have already served his sentence before the issue regarding bail is resolved, because with credit for jail time he will be eligible for release in three to four months.

At the appellate bond hearing, defense counsel proffered the following: (1) the appeal was taken in good faith; (2) appellant has never been convicted of a felony; (3) appellant has significant ties to the community through his business; (4) appellant was on pre-trial release for over three years and appeared for every court event; and (5) appellant was taken off the electric monitor and allowed to travel out-of-state on approximately eight separate occasions. On appeal his statement of judicial acts lists ten issues, including denial of motions in limine, motion for judgment of acquittal, admitting evidence over state objection, and limiting cross-examination of the alleged victim and her mother.

At the hearing, defense counsel asserted that the “largest issue that is subject to appellate review from the direct appeal ... is the fact that the age of Robin did not come in.” The state’s only argument in rebuttal concerned the potential merits of the appeal. The state asserted that the age of “Robin,” the person who allegedly drove the victim to the airport, came out through another witness. The state also objected based on the “type of charge” on which appellant was convicted — a misdemeanor. This reveals little to this court without further understanding of the charges, the evidence, and how this issue was raised in the trial court.

The trial court orally stated that “the appeal does exist on a good faith basis,” but denied the motion for post-trial release. In her written order, the trial judge stated:

The granting of bail after a defendant is convicted and sentenced is within the sound discretion of the trial judge. Younghans v. State, 90 So.2d 308, 309 (Fla.1956). In this case the Court finds the appeal to be frivolous and not based on grounds that are fairly debatable. Childers v. State, 847 So.2d 1120 (Fla. 1st DCA 2003). Further, this Court finds that because the Defendant resides out of state and has no local ties to the community, that he is a flight risk.

Appellant moved for reconsideration, asserting that he is a Florida resident with ties to the state, and attached a copy of his Florida Driver’s License to his motion. Appellant also submitted documentation from the Florida Division of Corporations, reflecting that appellant’s corporation has existed since 2008. The trial court denied the motion for reconsideration.

Florida Rule of Criminal Procedure 3.691(a) provides for discretionary release pending review under the standards set forth in Younghans v. State, 90 So.2d 308 (Fla.1956). Subsection (b) of that rule requires written findings when release is denied.

Younghans essentially directs the court to consider (1) whether the appeal is taken for delay or in good faith on grounds not frivolous but fairly debatable; (2) the habits of the individual regarding respect for the law; (3) local attachments to the community by way of family ties, business or investment; (4) the severity of the sentence imposed, and circumstances relevant to the question of whether the defendant would remove himself from the jurisdiction of the court.

Wells v. Wainwright, 260 So.2d 196, 197 (Fla.1972). “Good faith does not mean there is probable cause to believe the judgment will be reversed, but simply that the appeal is not vexatious and the defendant has assigned errors that are open to debate and about which reasonable questions exist.” Baker v. State, 213 So.2d 285, 287 (Fla. 4th DCA 1968) (citing Younghans).

Younghans also provides that, “[i]n a case where the term of imprisonment imposed is short, the trial court might also consider whether the den[ia]l of bail would render nugatory the right to appeal from the judgment of conviction.” 90 So.2d at 310. Finally, Florida Rule of Appellate Procedure 9.140(h)(3), requires that “[a]ll orders denying post-trial release shall set forth the factual basis on which the decision was made and the reasons therefor.” (emphasis added).

The trial court’s order fails to articulate reasons we can consider in fulfilling our responsibility to determine whether judicial discretion has been abused. Specifically, the court failed to explain, or set forth a factual basis for, its findings that the appeal is “frivolous and not based on grounds that are fairly debatable.” Merely incanting the language of the rule and Younghans is insufficient. Further, the trial court’s finding that “because the Defendant resides out of state and has no local ties to the community, that he is a flight risk,” is not supported by competent substantial evidence. Finally, the order reflects that the trial court failed to consider the short length of appellant’s sentence and whether “the den[ia]l of bail would render nugatory the right to appeal from the judgment of conviction.” Younghans, 90 So.2d at 310. A short sentence weighs in favor of granting bail pending appeal. See Evans v. State, 863 So.2d 384, 385 (Fla. 1st DCA 2003).

Accordingly, we reverse the order and remand the case to the trial court to conduct immediate further proceedings to reconsider post-trial release by applying all the principles enunciated in Younghans, and to make written findings based upon competent substantial evidence to support any order of denial. Alternatively, the court can authorize release upon bond as permitted under Rule 3.691.

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    Eugene LEVESQUE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2168.
    District Court of Appeal of Florida, First District.
    March 20, 2012.
    Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s conviction on Count I, but reverse and remand with directions to the trial court to vacate either Count II or Count III, as conceded by the State, and resentence Appellant accordingly-

AFFIRMED in part, REVERSED in part, and REMANDED.

DAVIS, THOMAS, and RAY, JJ., concur.


author: THOMAS, J.

text:
    Valerie SAPP, Appellant, v. MIAMI-DADE POLICE DEPARTMENT and Miami-Dade County Risk Management, Appellees.
    No. 1D11-3697.
    District Court of Appeal of Florida, First District.
    March 20, 2012.
    Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellants.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Daron S. Fitch, Assistant County Attorney, Miami, for Appellees.
   THOMAS, J.

REVERSED and REMANDED for the Judge of Compensation Claims to determine, solely on the basis of the record without further receipt of evidence or argument, whether the Employer/Carrier had good cause for the lack of specificity of its initial response to Claimant’s fee motion, or for the untimeliness of its amended response to Claimant’s fee motion, and for a ruling on fees given that finding as to good cause. See Fla. Admin. Code R. 60Q-6.124(3)(b); Morrison Mgmt. Specialists/Xchanging Integrated Servs. Group, Inc. v. Pierre, 77 So.3d 662 (Fla. 1st DCA 2011) (remanding for determination of whether good cause existed for late filing of response to motion for attorney’s fees); Lias v. Anderson & Shah Roofing, Inc., 867 So.2d 599 (Fla. 1st DCA 2004) (reversing judge’s deviation from limited scope of remand, and again remanding for determination of factual issue “without the taking of further testimony” and entry of ruling resulting from that determination).

DAVIS and RAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Christopher SANTOS, Appellee.
    No. 4D10-3247.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Chubbuck, 83 So.3d 918, 2012 WL 716136 (Fla. 4th DCA Mar.7, 2012).

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    Christopher RICE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0105.
    District Court of Appeal of Florida, First District.
    March 22, 2012.
    Jeffrey A. Siegmeister, Lake City, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the judgment and sentence rendered on December 5, 2011, in Columbia County Circuit Court case number 10-169-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    DEPARTMENT OF REVENUE o/b/o Alysha M. STERLING, Appellant, v. Shaun O. WIGNAL, Appellee.
    No. 1D11-3124.
    District Court of Appeal of Florida, First District.
    March 23, 2012.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

REVERSED and REMANDED. See Department of Revenue ex rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011).

PADOVANO, LEWIS, and CLARK, JJ., concur.