author: ALTENBERND, Judge.

text:
    JP MORGAN CHASE BANK, National Association, Appellant, v. Ralph F. JURNEY and Connie L. Jurney a/k/a Connie Jurney, Husband and Wife; Bank of America, National Association; University Place Neighborhood Association, Inc.; Unknown Parties in Possession # 1; Unknown Parties in Possession # 2; If Living, and all Unknown Parties claiming by, through, under and against the above named Defendant(s) who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouse, Heirs, Devises, Guarantees, or Other Claimants, Appellees.
    No. 2D10-2973.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.
    Gerald F. Richman, Leora B. Freire, and Chad J. Gottlieb of Richman Greer, P.A., West Palm Beach (withdrew after briefing); Jeffrey T. Kuntz and Thomas H. Loffredo of GrayRobinson, P.A., Fort Lauderdale (substituted as counsel of record), for Appellant.
    No appearance for Appellees.
   ALTENBERND, Judge.

The plaintiff, JP Morgan Chase Bank, National Association (JP Morgan), appeals a final order sua sponte dismissing JP Morgan’s foreclosure action against the defendants, Ralph and Connie Jurney (the Jurneys). The order of dismissal prohibits JP Morgan from amending its complaint in this action, but permits JP Morgan to refile a new foreclosure action. The trial court entered this dismissal as a “sanction” because it concluded that JP Morgan failed to comply with an amendment to Florida Rule of Civil Procedure 1.110(b) that requires mortgage foreclosure complaints to be verified. It did not give JP Morgan notice of its intention to sanction the bank or any opportunity to explain why a sanction should not be imposed. We reverse.

Although the trial court appears to have been correct that the new amendment applied to this complaint, JP Morgan had a reasonable explanation as to why it believed the amendment did not apply, which the trial court never allowed the bank to present. This case does not involve a willful violation of the rules of procedure and, at worst, involves a misunderstanding of the effect of a motion for rehearing in an appellate proceeding. The trial court abused its discretion by sanctioning JP Morgan for an error of law that was no more than an honest mistake.

On February 11, 2010, the Florida Supreme Court issued an opinion amending Florida Rule of Civil Procedure 1.110(b) to require foreclosure complaints to be verified. See In re Amendments to the Fla. R. Civ. R, 44 So.3d 555 (Fla.2010); Although rule changes are usually issued in opinions that provide ample notice of the precise date and even the exact minute when the amendment will become effective, the court’s opinion declared that “[t]he amendments shall become effective immediately upon the release of this opinion.” It also contained the standard caveat that the opinion would not be final “until time expires to file rehearing motion, and if filed, determined.”

On February 26, 2010, one of the law firms representing JP Morgan on appeal in this case filed a timely motion for rehearing in the supreme court’s rule proceeding. The supreme court denied the motion, but issued a revised opinion on June 3, 2010. In re Amendments to the Fla. R. Civ. P., 44 So.3d 555. The revised opinion also stated that the amendments were effective immediately upon “release” of the opinion.

We note that in issuing this revised opinion, the supreme court used a procedure that can confuse even experienced appellate attorneys. Even though the opinion issued in June differs from the opinion originally issued in February, it continues to bear the date of the original opinion, indicating only that it was “revised on rehearing.” In this case, the revised opinion does not alter the amendment to the rule. But this opinion would seem to have been “released” twice on different dates while bearing only the initial date of issuance.

On March 24, 2010, while the motion for rehearing was pending in In re Amendments to the Florida Rules of Civil Procedure, JP Morgan filed a partially verified complaint seeking to foreclose the Jurneys’ mortgage. On May 18, 2010, the trial court sua sponte dismissed the complaint on the ground that the complaint had not been verified in compliance with Florida Rule of Civil Procedure 1.110(b) as amended by the supreme court on February 11, 2010. From our record it is unclear whether the trial court realized that the supreme court’s decision was pending on rehearing at the time that it sanctioned JP Morgan.

Ordinarily; the filing of a timely and authorized motion for rehearing stays the “rendition” of an order. See Fla. R.App.P. 9.020(i). However, in this case, the February 11, 2010, amendment order stated that the amendments were effective immediately “upon release of this opinion.” The term “release” is not defined in the Florida Rules of Appellate Procedure.

It is the understanding of this court that, in this context, the supreme court intends rules to become effective on the issuance of the original opinion and to remain effective during any period in which a motion for rehearing can be filed or is pending. We are not aware of any case that actually so holds.

In this case, the attorney representing JP Morgan had a reasonable belief that the amendments were not applicable until the supreme court released its final opinion. JP Morgan may have misunderstood the effective date of the amendments in this context, but that misunderstanding was itself understandable. Given that there is nothing in this record to suggest that JP Morgan intentionally or even carelessly failed to follow the new procedure, and given that the trial court sanctioned JP Morgan without any notice or opportunity to be heard, we reverse this order and remand with instructions that JP Morgan be granted leave to amend the complaint.

Reversed and remanded.

SILBERMAN, C.J., and WALLACE, J., Concur.

      . The original opinion can be accessed on the Florida Supreme Court's Web site. Florida Supreme Court, Court Opinions, 2010, http:// www.floridasupremecourt.org/decisions/2010/ sc09-1460.pdf (accessed Mar. 30, 2012).

      . See, e.g., In re Amendments to R. Regulating Fla. Bar-10-9.1, 82 So.3d 66, (Fla.2012) (opinion issued on January 26, 2012, with amendments effective April 1, 2012, at 12:01 a.m.); In re Amendments to Fla. R. Civ. P. 1.720, 75 So.3d 264 (Fla.2011) (opinion issued November 3, 2011, with amendments effective January 1, 2012, at 12:01 a.m.); In re Amendments to Fla. R.App. P., 75 So.3d 239 (Fla.2011) (opinion issued November 3, 2011, with amendments effective on January 1, 2012, at 12:01 a.m.).

      . This language seems to have become more common recently and is used when there is an apparent need to avoid delay. See, e.g., In re Amendments to Fla. Supreme Court Approved Family Law Forms, 84 So.3d 274 (Fla.2012) (opinion issued on March 15, 2012, with amendments effective immediately upon release); In re Amendments to Fla. R.Crim. P. 3.992(A), 73 So.3d 202 (Fla.2011) (opinion issued September 28, 2011, with amendments effective immediately upon release). Our research on Florida opinions issued with the word "amendment” in the title and the phrase “immediately upon release” in the body indicates thirty such opinions, all since 2006. The supreme court issued an opinion in March 2012 making the amendments effective "nunc pro tunc” to January 1, 2012, at 12:01 a.m. In re Amendments to Fla. Family Law Rules P„ SCI 1-40, 2011 WL 5219466 (Fla. Mar.15, 2012) (revised opinion issued after withdrawal of original opinion, issued Nov. 3, 2011 (see Florida Supreme Court, Court Opinions, 2012, http://www.florida supremecou rt.org/decisions/2012/scl 1-40_ReahearingOrder.pdf (accessed Mar. 30, 2012))).

      . The motion is listed on the supreme court’s online docket for case number SC09-1579. It was filed by Gerald Frederick Richman. Florida Supreme Court, Public Info, On-line Docket, http://jweb.flcourts.org/pls/docket/ds_ docket_search% 20 (enter case number SC09-1579) (accessed Mar. 30, 2012).

      . The revised opinion is available on the Florida Supreme Court’s Web site. Florida Supreme Court, Court Opinions, 2010, http:// www.floridasupremecourt.org/decisions/2010/ sc09-1460.pdf (accessed Mar. 30, 2012).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Vincent S. MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1129.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.

      Vincent S. Mills, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

PALMER, SAWAYA and COHEN, JJ., concur.


text:
    Joseph Michael BOULE, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4509.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.

      Joseph M. Boule, Sr., Gainesville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Joseph Boule, appeals the summary denial of his rule 3.850 motion in which he alleges that his trial counsel was ineffective in failing to discover a video tape which contradicted the testimony of the officer who arrested him. Although Boule’s motion was filed more than two years after his judgment and sentence became final, Boule is relying on one of the exceptions to the two-year rule by alleging that the video tape is newly discovered evidence. However, it is apparent from Boule’s motion that his claim is insufficiently pled because the motion does not indicate that the video tape constitutes newly discovered evidence. In order for evidence to be considered “newly discovered,” it must have been unknown at the time of trial and it must appear that neither the defendant nor his counsel could have known of it by the exercise of diligence. See Jones v. State, 591 So.2d 911, 916 (Fla.1991) (defining newly discovered evidence). Here, Boule has failed to allege when the video was discovered, that it was unknown to the parties at the time he entered his plea, and that the video could not have been discovered with the exercise of diligence. If Boule, in good faith, can make those allegations he should be given an opportunity to do so. - See Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse and remand for the trial court to strike Boule’s motion with leave to amend his claim in a specified time consistent with the parameters identified in Spera., See Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008).

REVERSED and REMANDED with Instructions.

GRIFFIN, EVANDER and JACOBUS, JJ., concur.


text:
    WESTON ORLANDO PARK, INC., et al., Appellant, v. FAIRWINDS CREDIT UNION, Appellee.
    No. 5D11-2260.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.

      David H. Simmons, Daniel J. O’Malley, and C. Brent Wardrop, of de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellant.
    Jennifer K. Birmingham, and Philip D. Storey, of Alvarez, Sambol & Winthrop, P.A., Orlando, for Appellee.
   PER CURIAM.

Weston Orlando Park, Inc., Weston Orlando Hotel, Inc., Weston Orlando Five, Inc., Pablo A. Marulanda, Alicia Marulan-da, and Fugleberg Koch Architects, Inc. appeal from a final summary judgment of foreclosure entered in favor of Fairwinds Credit Union. We affirm in all respects, except as to the trial court’s reservation of jurisdiction regarding Fairwinds’s claims for breach of the promissory notes.

The trial court could not reserve jurisdiction on Fairwinds’s claims for breach of the promissory notes, separate from the claims for foreclosure, because the debt represented by the notes had merged into the final judgment. The doctrine of merger provides that when a valid and final judgment is rendered in favor of a plaintiff, the original debt or cause of action upon which an adjudication is predicated merges into the final judgment, and, consequently, the cause’s independent existence terminates. Diamond R. Fertilizer Co., Inc. v. Lake Packing P’ship, 743 So.2d 547, 548 (Fla. 5th DCA 1999); see Vernon v. Serv. Trucking, Inc., 565 So.2d 905, 906 (Fla. 5th DCA 1990) (“[A] debt reduced to final judgment merges into the final judgment and loses its prejudgment identity.”). As such, the promissory notes and the mortgages merged into the final judgment. Nack Holdings, LLC v. Kalb, 13 So.3d 92, 94 n. 2 (Fla. 3d DCA 2009) (“The mortgage is merged into the judgment, is thereby extinguished, and ‘loses its identity.’ ”). And, a subsequent action for the same cause on the notes and mortgages is barred. 32 Fla. Jur. 2d Judgment and Decree § 116 (1994); see Sunshine Utils. Equip., Inc. v. Treasure Coast Utils., Inc., 421 So.2d 1096 (Fla. 4th DCA 1982).

However, Fairwinds continues to have a right to pursue a deficiency judgment against the obligors and to demand the remaining indebtedness from the Marulan-das under the guaranty agreements. See LPP Mortg. Ltd. v. Cacciamani, 924 So.2d 930, 931 (Fla. 3d DCA 2006) (holding action on guaranty and foreclosure not inconsistent remedies); Kurkjian v. Fish Carburetor Corp., 145 So.2d 523, 526 (Fla. 1st DCA 1962) (stating that final decree in foreclosure action does not dispose of deficiency question since it cannot be determined until after decree entered whether sale price of property being foreclosed is excessive or insufficient to satisfy liquidated amount set out in final decree). On remand, the trial court shall strike the reservation of jurisdiction on the promissory note counts. See generally Jessup v. Cowger & Miller Mortg. Co., 505 So.2d 687, 687 (Fla. 3d DCA 1987).

AFFIRMED in part; REVERSED in part; and REMANDED.

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


author: SHEPHERD, J. RAMIREZ, J.

text:
    James WARMINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1028.
    District Court of Appeal of Florida, Third District.
    April 27, 2012.
    Carlos J. Martinez, Public Defender, and Robert Halter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

This is an appeal by James Warmington from his conviction for grand theft of a sum of money greater than $20,000 but less than $100,000. Warmington asserts two grounds for reversal: (1) that the investigating officer’s testimony, given over defense objection, that Warmington told the officer, just before he was arrested, he could not provide any documentation to support his position that the money owed was a loan rather than a theft, constituted improper burden shifting on the part of the prosecution; and (2) prosecutorial misconduct during closing argument. Finding no merit in either point raised, we affirm the conviction.

Taking the facts in the light most favorable to the State, the State established that Christine Pistol, who had been a student in Warmingtoris real estate class, and her husband, Robert Pistol, approached Warmington, expressing a desire to invest in mortgages. Warmington responded that a friend, Rene Sardina, was interested in borrowing money, secured by a second mortgage on a piece of property he desired to purchase. According to Warmington, Sardina’s credit was such that he could not qualify for a second mortgage loan in the marketplace and, therefore, was willing to pay a higher-than-market, nine-percent interest rate on the mortgage. Warmington functioned as the middleman for the transaction.

On September 10, 2002, the Pistols and Sardina met Warmington and his wife at the Warmingtons’ house for the purpose of closing the transaction. The closing documents, including a promissory note and mortgage, were prepared by Warmington. The Pistols brought two $75,000 checks, representing the loan amount. After Sar-dina signed the promissory note and mortgage, all of the parties travelled together to Warmingtoris bank, where his wife deposited the two checks into the Warming-tons’ personal bank account. Robert Pistol testified that given Warmingtoris role in the transaction as the middleman, he did not find anything suspicious about the fact the money was deposited into the Warmingtons’ bank account.

The Pistols received payments on the loan from October 2002 through 2005. Payments were made from Warmingtoris bank account. When the Pistols stopped receiving payments, they contacted Sardi-na, who stated he never received the $150,000, and was told by Warmington the deal fell through. Warmington testified the mortgage deal fell through, but the Pistols agreed to continue the transaction as a personal loan to Sardina, upon which Sardina simply had defaulted.

Detective Abolsky was assigned as the lead detective to the criminal case, precipitated by the Pistols’ complaint to the authorities after the payments to them ceased. After interviewing the Pistols and Sardina, Detective Abolsky approached Warmington and obtained an interview. Detective Abolsky testified:

[Prosecutor]: When you interviewed Mr. Warmington, how far [sic] is it that it came about?
[Detective]: Well, what I believed to be the complete case file, I went to his home to visit with him.
[Prosecutor]: What [wa]s the purpose of your visit?
[Detective]: The purpose of my visit was to allow him to dispel any alarms that I may have or concerns that he did anything wrong.
[Prosecutor]: And was he able to do that?
[Defense Counsel]: Objection. Burden shifting.
The Court: Sustained.
[Defense Counsel]: We have a motion to object, Judge.
The Court: Yes.
[Prosecutor]: When you went and spoke to him, what was the extent of your investigation?
[Detective]: I advised him of the nature of the investigation. We spoke outside his residence. I began explaining to him what the allegations were and I offered him an opportunity to—
[Defense Counsel]: Objection.
The Court: Sustained.
[Prosecutor]: Your Honor.
The Court: Continue on.
[Prosecutor]: And what was the result of that conversation?
[Detective]: Well, Mr. Warmington had indicated to me that a loan had been funded to Mr. Rene Sardina and that Mr. Sardina was no longer paying on the loan. The loan was comprised basically [of] a mortgage or something and as a result he had explained this to the Pistols and subsequently it was a matter he was trying to take care of.
[Prosecutor]: Was the defendant able to produce any documentation?
[Defense Counsel]: Objection. Burden shifting. We reserve—
The Court: Overruled.
[Prosecution]: Was there documentation that day with regards to this explanation he gave you?
[Detective]: No, in fact, he represented that his home was also his office. And when I asked for him to provide any documentation, he couldn’t.
[Defense Counsel]: Objection
The Court [sic]: Same objection as previously noted. We reserve the motion.
The Court: Continued objection. Go ahead.
[Prosecution]: When you had that conversation with Mr. Warmington, what happened?
[Detective]: I placed him under arrest.

At the conclusion of Detective Abolsky’s testimony, Warmington moved for a mistrial, arguing the State improperly shifted the burden of proof to Warmington. The trial judge denied the motion, finding the State did not shift the burden. Warming-ton argues on appeal the trial judge abused his discretion in denying the motion. We disagree.

Burden shifting occurs when the State “invite[s] the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.” Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). An investigating officer’s testimony concerning what he saw, observed, or discovered during the course of his investigation does not shift the burden of proof. It is evidence. In this case, the investigating officer discovered that Warmington did not have copies of certain mortgage documents signed by Sardina at the closing of the transaction at his home. The testimony may or may not have been significant; one might argue that Warmington, who, after all, merely was the middleman in the transaction, would have no need to have a set of the mortgage documents. On the other hand, the fact certainly was material for the jury to hear.

The defense places its primary reliance on a line of cases where a prosecutor’s questioning at trial resulted in the burden at trial being less than it should be, where the jury is left with the impression that a defendant had an obligation to produce evidence of his innocence at trial, or when the burden at trial, is less than reasonable doubt. For example, in Hayes v. State, 660 So.2d 257 (Fla.1995), heavily relied upon by the defense, the Florida Supreme Court found that testimony elicited by the prosecution at trial that the defense had not asked a crime laboratory to test blood stains and added that the lab had complied with such requests in the past for other defense attorneys constituted improper burden shifting. See id. at 265 (citing Jackson v. State, 575 So.2d 181, 188 (Fla.1991) (reversing a conviction where the prosecutor commented on the defendant’s failure to call a particular witness to testify)).

In Ramirez v. State, 1 So.3d 388 (Fla. 4th DCA 2009), also cited by the defendant, Ramirez was charged with battery on a law enforcement officer during the course of the booking process into the local jail. Id. at 384. Law enforcement personnel testified they physically subdued Ramirez and then took her to be seen by medical personnel and photographed, in accordance with jail protocol in such circumstances. The pictures taken by the medical personnel were admitted into evidence. On cross-examination, the State asked the defendant whether she had been injured. When she replied in the affirmative, the State asked, “Did you take any pictures of your injuries?” Id. at 385. Defense counsel’s objection on the ground of burden shifting was overruled, and Ramirez testified that she did, but they came out too “light,” so she did not bring them to trial. Id. The prosecutor continued:

Q. So you don’t have any pictures here with you?
A. Well, here at this moment, no.
Q. In fact, the only pictures that we have is a picture taken by Sergeant Acosta which showed no injury; is that correct?

Id. Defense counsel again objected. After a bench conference, the prosecutor restated the question as follows:

Q. Did you ask anyone at the jail to take a closer picture of you that would show your injuries?
A. No.

Id. The State also asked whether she had any doctor’s reports or other information to document her injuries.

On appeal, the Fourth District Court of Appeal reversed and remanded the case for a new trial, reasoning the trial court abused its discretion when it allowed the State to shift the burden to the defendant through questions and comments that implied the defendant should have produced photographic evidence and medical reports “to refute an element of the crime” — the physical touching or the battery. Id. In the case before us, possession by Warm-ington (or lack thereof) of the mortgage documents is not an element of the crime. The historical fact that Warmington did not have a set of the documents could as well come through a search pursuant to a warrant. We are unable to find any legal misstep in the trial court permitting the same result through admission into evidence of a voluntarily made statement by the defendant.

Miele v. State, 875 So.2d 812 (Fla. 2d DCA 2004), the third case cited by Warmington for reversal, also affords Warmington no succor. This case involves impermissible comments by the State on a defendant’s failure to present evidence, but this time through the trial testimony of Miele’s sister and his former girlfriend. Id. at 814. Miele had been charged with burglary of a dwelling from which he was alleged to have taken a stash of two dollar bills from a five-gallon jug. Id. at 813. Miele’s defense was that the money came not from a jug in the burgled house, but rather from a jug at his father’s house. Id. at 814. On cross-examination by the State, the girlfriend was asked, over defense objection, whether Miele’s father was present in the courthouse. Miele’s sister was asked whether she had a camera, and whether she had taken pictures of her father’s jug money. She testified she took some, coincidentally after Miele asserted the alternate source of the money to police, but that she gave them to her father. Id. The Second District Court of Appeal reversed Miele’s conviction on the ground that the line of questioning was a comment on Miele’s failure to produce photographs of his father’s money jug. Id. Our case is readily distinguishable from Miele, again on the ground that Detective Abolsky was testifying as to historical fact.

Finally, we are not moved by the fact Warmington was arrested immediately after he told Detective Abolsky he did not have a copy of the mortgage documents. This again is a matter of historical fact. The testimony, taken as a whole, was prejudicial to Warmington. However, all defendants are arrested at some point, and the fact of arrest regularly makes its way into testimony at trial. The State at all times had the burden to prove the case against Warmington beyond a reasonable doubt. We do not believe this burden was lessened by Detective Abolsky’s testimony.

In his second point on appeal, Warmington asserts the trial court abused its discretion in not granting a mistrial when, during the course of her review of the evidence, the prosecutor argued, “Now, one of the tools used to confuse you ...” Assuming the defense properly preserved the point through the single word, “objection,” we conclude this single statement — even if directed at defense counsel, as appellant argues to us — was not so egregious or inflammatory in the context of the entire final argument made by the prosecutor to affect the fairness of the trial. See Del Rio v. State, 732 So.2d 1100, 1102 (Fla. 3d DCA 1999).

Affirmed.

SUAREZ, J., concurs.

RAMIREZ, J.

(dissenting).

I dissent. The majority opinion directly contradicts the supreme court case of Hayes v. State, 660 So.2d 257 (Fla.1995). It purports to distinguish this binding precedent by saying “testimony elicited by the prosecution at trial that the defense had not asked a crime laboratory to test blood stains and added that the lab had complied with such requests in the past for other defense attorneys constituted improper burden shifting.” Majority opinion at pp. 1190-91. How is that different from our case? Here the prosecutor was allowed to ask the detective at trial why he visited the defendant — to allow him to dispel any concerns that he did anything wrong. The detective also testified at trial that the defendant could provide no documentation to support his position that the money owed was a loan rather than a theft. When the defendant could not, he was immediately arrested. If this is not shifting the burden, I don’t know what is.

The attempt by the majority to distinguish Ramirez v. State, 1 So.3d 383 (Fla. 4th DCA 2009) is equally puzzling. It is evidently based on the fact that not having any documents to show mortgage versus theft “is not an element of the crime.” I fail to see the significance of this. The documents would relate to a defense, not an element of the crime. The whole point of shifting the burden is that the defendant is made to come forth to prove his innocence, instead of requiring the State to prove his guilt. More enigmatic is the reference to the fact that the documents could be obtained through a search warrant and that the statement was voluntary. The issue was not the suppression of evidence or the statement, it was the shifting of the burden.

Finally, Miele v. State, 875 So.2d 812 (Fla. 2d DCA 2004) is right on point when it states that “[i]t is not permissible for the State to comment on the defendant’s failure to present evidence refuting an element of the charged crime. The only exception to this rule applies when the defendant assumes some burden of proof by offering an affirmative defense and the witness is not equally available to the State.” Id. at 814 (emphasis added; citations omitted). There is no attempt to apply the exception. Instead the majority seems to create a historical exception to the burden shifting. Apparently our long history of requiring the State to prove a defendant’s guilt is not applicable to “historical facts.”

I would reverse.

      . Warmington seeks to analogize the testimony in this case to a defendant's pre-arrest refusal to respond to an investigator’s inquiry concerning whether the defendant committed the crime. That question, of course, raises a different concern. See U.S. Const, amend. V. The inquiry made in this case is no different than an officer's testimony of the inability of a defendant to produce his registration during the course of an investigatory stop.


text:
    Alphonzo J. CLARK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-547.
    District Court of Appeal of Florida, Third District.
    April 27, 2012.
    Alphonzo J. Clark, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


author: WALLACE, Judge.

text:
    K.K., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Guardian Ad Litem Program, Respondents.
    No. 2D12-1033.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.
    Ita M. Neymotin, Regional Counsel, Second District, Fort Myers, and David C. Chafin, Assistant Regional Counsel, Clear-water, Office of Criminal Conflict and Civil Regional Counsel, for Petitioner.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Respondent Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Respondent Guardian ad Litem Program.
   WALLACE, Judge.

K.K., the Mother, petitions for certiorari review of an order requiring her to submit to a psychological evaluation under section 39.407(15), Florida Statutes (2011), and Florida Rule of Juvenile Procedure 8.250(b) in the context of expedited proceedings to terminate her parental rights to A.S and M.S. We grant the Mother’s petition in part and quash the order to the extent that it fails to “specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made” as required by rule 8.250(b). We remand for the circuit court to enter an amended order that complies with rule 8.250(b). See D.C. v. Dep’t of Children & Families, 966 So.2d 1032, 1033 (Fla. 4th DCA 2007).

The Mother’s remaining arguments are without merit and do not warrant discussion. Accordingly, we deny the Mother’s petition in all other respects.

Granted in part and denied in part.

ALTENBERND and WHATLEY, JJ„ Concur.


author: BLACK, Judge.

text:
    Clarence E. CARLTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5477.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Clarence Carlton challenges his judgment and sentence for aggravated assault. We affirm the length of Carlton’s sentence. However, he argues, and the State correctly concedes, that we must remand this case for the court to strike the habitual felony offender (HFO) designation so that the written sentence comports with the oral pronouncement.

The trial court adjudicated Carlton guilty of aggravated assault, a third-degree felony, and sentenced him to 25.4 months in prison, which is within the statutory guidelines. See §§ 784.021(2), 775.082(3)(d), Fla. Stat. (2010). At the sentencing hearing, the State requested an HFO designation but the court did not find enhancement appropriate. Accordingly, it did not include that designation in its oral pronouncement, but it did include an HFO designation on the written sentence.

Subsequent to filing his notice of appeal, Carlton appropriately filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion, raising the oral versus written discrepancy. The court found the motion facially sufficient and ordered the State to respond. However, the State failed to respond, and the trial court failed to rule on this motion within sixty days; thus, we deem the motion denied. See Shorter v. State, 14 So.3d 1063, 1064 (Fla. 2d DCA 2009).

When there is a discrepancy between the written sentence and the oral pronouncement, the oral pronouncement prevails. See Rivera v. State, 34 So.3d 207, 208 (Fla. 2d DCA 2010). Because the trial court’s oral pronouncement of Carlton’s sentence does not include an HFO designation but his written sentence does, we remand this case with directions for the trial court to correct this scrivener’s error. See Jackson v. State, 936 So.2d 1172, 1172 (Fla. 1st DCA 2006). Because this is a ministerial act, Carlton’s presence is not required. See id.

Affirmed in part; remanded with instructions.

ALTENBERND and VILLANTI, JJ„ Concur.


author: SUAREZ, J. RAMIREZ, J.

text:
    Phillip CHERISMA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3056.
    District Court of Appeal of Florida, Third District.
    April 30, 2012.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Phillip Cherisma appeals from a final judgment of conviction. We affirm.

Cherisma was charged with one count of armed robbery, one count of impersonating an officer while committing an armed robbery, and one count of armed burglary. The victim testified that he was pulled over by a man driving a white Dodge Charger with police lights. The driver, who held a gun and appeared to be wearing a badge, approached the victim’s car and told him they were searching vehicles. The man asked the victim to get out of the car, and he did. A second man, later identified as the appellant, was sitting in the Dodge Charger while the driver searched the victim’s car as well as the victim, took the victim’s wallet and cell phone, got into the Charger and drove off. The victim called the police, provided a description of the suspects and later positively identified the appellant and his co-defendant by photo lineup. The jury found Cherisma guilty as charged. He was sentenced as a prison release re-offender to life on counts one and three, and to fifteen years on count two.

The defense, on cross-examination, elicited testimony from the investigating detective, Detective Gabriel, that the victim’s report of the incident varied in some of the details he remembered. The State, on redirect and after objection from the defense, was allowed to ask Detective Gabriel whether he would have altered his decision to arrest the defendant had he known of these discrepancies between the victim’s report to the police of the incident and the victim’s later report to the investigating detective. The detective answered that, had he known of these discrepancies, he would have arrested the defendant anyway. He explained that these variations of detail did not alter the basic implication that the defendant had committed a crime against the victim.

The defendant argues that the trial court erred by allowing the State, on redirect, to elicit this testimony from Detective Gabriel because it was improper bolstering of victim’s testimony. Detective Gabriel’s testimony, that he would have proceeded with his investigation despite inconsistencies between the victim’s initial and subsequent account of the details, was elicited in rebuttal to the defense suggestion on cross-examination that the victim was an unreliable witness. His responses did not amount to vouching for the victim’s credibility or the truthfulness of his testimony. The trial court did not err by allowing the State to elicit this testimony as proper rebuttal to the defense’s questions.

The State next introduced a Williams rule witness, who had been robbed in a similar manner about an hour after the first victim. She initially reported that the person who robbed her was clean-shaven. At trial, the witness could not identify Cherisma as the person who had robbed her, although she had positively identified him from a photo lineup several days after the offense. That photo showed the defendant with some sparse chin hair. The State, again on re-direct and in response to defense questions regarding the objectivity of the photo lineup, elicited testimony from the second investigating officer, Detective Bendiano, in response the suggestion by the defense that the lineup was biased. The defense made a general objection to the questioning, which fell short of preserving the issue for appeal by its lack of specificity. To satisfy the preservation requirement, “an issue, legal argument, or objection to evidence” must be “timely raised before, and ruled on by, the trial court, and the issue, legal argument, or objection to evidence” must have been “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” § 924.051(l)(b), Fla. Stat. (2005); see also Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (“The purpose of this rule is to ‘place the trial judge on notice that error may-have been committed, and provide her with an opportunity to correct it at an early stage of the proceedings.”). An appeal may not be taken from a trial court judgment or order unless a prejudicial error is properly preserved, or the error amounts to fundamental error. See § 924.051(3), Fla. Stat. (2005); State v. Roberts, 963 So.2d 747 (Fla. 3d DCA 2007). Further, Detective Bendiano’s response on re-direct examination did not express an opinion as to the eyewitness’s credibility. The error, if any, was not properly preserved for appeal, and it does not amount to fundamental error.

We affirm the defendant’s convictions and sentences.

SHEPHERD, J., concurs.

RAMIREZ, J.

(dissenting).

I dissent, based upon Lee v. State, 873 So.2d 582 (Fla. 3d DCA 2004), which remains binding precedent and should control the outcome in this case. In Lee, the detective testified that the victim “was a credible witness.” The defense objected to the introduction of this testimony and moved to strike the testimony. The trial court overruled the objection. This Court concluded the police detective’s response served to bolster the-victim’s credibility, and the admission of the testimony constituted reversible error.

In this case, the State elicited testimony regarding the officer’s impressions of his interactions with the crime victim, even though such testimony was not necessary. The issue at trial was not whether the police officer made a proper decision when he charged the defendant. The issue was whether the victim correctly identified Cherisma as the perpetrator. The victim testified regarding her identification of those she believed robbed her, and she was cross-examined regarding the specifics of her identification. The jury, not anyone else, was responsible for evaluating her credibility.

Consequently, the testimony from a law enforcement witness that discrepancies would not have altered the officer’s decision to arrest the defendant had no probative value except to vouch for the credibility of the victim. The alleged inconsistencies were already before the jury through both the victim’s testimony and the officer’s testimony regarding the circumstances of the arrest. Like the victim, the officer’s purpose in testifying was to relate facts and recollections, but not evaluate the credibility of the evidence. Credibility determinations are for the jury. I do not see how the majority can state that the testimony “was elicited in rebuttal to the defense suggestion on cross-examination that the victim was an unreliable witness,” yet conclude that it “did not amount to vouching,” as these facts suggest no other purpose for such a rebuttal.

For these reasons, I dissent.

      . For instance, discrepancies between the victim's initial report and testimony included whether the victim said the flashing lights were blue, or red/blue; whether he said that the gun had a scope light attached or not; and whether the victim knew that his credit card had been used right after the robbery.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    D.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5856.
    District Court of Appeal of Florida, First District.
    April 30, 2012.

      Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


author: RAMIREZ, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. Luis Ramirez and Roxana RAMIREZ, Respondents.
    No. 3D12-661.
    District Court of Appeal of Florida, Third District.
    April 30, 2012.
    Walton Lantaff Schroeder & Carson and Jennifer L. Hogue; Russo Appellate Firm, and Susan S. Lerner, Miami, for petitioner.
    Buekland and Dáng and Cassidy Dang, Miami, for respondents.
    Before RAMIREZ and EMAS, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

This petition seeks a writ of certiorari quashing two orders in this action for a declaration of property insurance benefits and alleging breach of contract. There is no claim for bad faith against the insurer. We deny in part and grant in part the petition.

The first order dated February 9, 2012, simply directed petitioner to create a privilege log and provide the documents under seal for an in camera inspection. We deny the petition as to this order because it is premature. See Gaton v. Health Coalition, Inc., 774 So.2d 59, 60 (Fla. 3d DCA 2000).

The second order, dated March 7, 2012, however, compelled the petitioner to produce its entire claim file. This order departs from the essential requirements of law and will cause irreparable harm which cannot be remedied on appeal following final judgment. See Nationwide Ins. Co. of Fla. v. Demmo, 57 So.3d 982 (Fla. 2d DCA 2011) (stating claims file documents are protected from disclosure in a breach of contract action without a bad faith claim and the issue of coverage not yet resolved); accord Granada Ins. Co. v. Ricks, 12 So.3d 276, 277 (Fla. 3d DCA 2009); Gov’t Employees Ins. Co. v. Rodriguez, 960 So.2d 794, 795 (Fla. 3d DCA 2007).

Accordingly, we quash the order dated March 7, 2012, but at this time deny cer-tiorari as to the order dated February 9, 2012.

Certiorari granted in part, denied in part.


text:
    DEPARTMENT OF REVENUE, by and on behalf of Mary A. THORMAN, Appellant, v. Robert G. HOLLEY, Appellee.
    No. 1D11-3089.
    District Court of Appeal of Florida, First District.
    May 1, 2012.

      Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    Kathleen E. Anderson, Pensacola, for Appellee.
   PER CURIAM.

The Department of Revenue (DOR), acting on behalf of Mary A. Thorman (the mother), appeals a final order ruling that Robert G. Holley (the father) is no longer obligated to pay any child-support arrear-ages that he accrued but may not have satisfied. This ruling was based on the doctrines of laches and estoppel, as well as a determination that the father’s right to due process was violated by the numerous delays in arriving at a final arrearage amount. Under the circumstances of this case, none of these grounds justify relieving the father of his obligation to pay his past-due child support and the interest that has accrued thereon. Accordingly, we reverse and remand for entry of a final order establishing the amount of arrearag-es, if any, the father still owes.

As noted by the circuit court, this case has a lengthy and complicated history. The mother and father were divorced in 1984. Under the divorce decree, the father was ordered to pay support for two children. The younger child reached the age of eighteen in 1998. By that time, the father had accrued child-support arrearag-es of at least $26,626.48. In May 2003, the circuit court, acting on the recommendation of a child support enforcement hearing officer, entered an order providing that the amount of the father’s arrearages was $10,552.67. The order notes that the ar-rearage amount represented the net owed after application of a lump-sum payment from the Social Security Administration of $13,632.00.

In December 2004, DOR filed a motion to establish arrearages. On the same day, the clerk of the circuit court issued a payment record indicating that the father had a credit on his account. At the hearing that followed, DOR advised the hearing officer that there was a mistake in the May 2003 order, as the lump-sum payment from Social Security had never been received. DOR explained that when the parties appeared before the court in the proceedings leading to the May 2003 order, the lump-sum payment was merely anticipated. Understanding that the error in the May 2003 order amounted to a mistake of fact, the hearing officer opined that it was too late to correct the error because more than one year had passed since entry of the order. On February 7, 2005, the circuit court adopted a recommended order stating that DOR’s “motion to set aside” the May 2003 order was denied. DOR moved for rehearing ten days later, arguing that the mistake in the May 2003 order was a clerical error.

The court did not rule on the motion for rehearing until December 2006. At that time, the court adopted the hearing officer’s recommended order concluding that subtraction of the anticipated lump-sum payment from the father’s arrearages was indeed a clerical mistake. The court then found that the interests of justice required that the arrearage issue be revisited, essentially vacating the May 2003 order. The court reserved jurisdiction to determine the amount of the arrearages.

No further action took place in the case until approximately three years later when, in February 2010, DOR filed a motion to establish arrearages. The father moved to dismiss this action, alleging that he had actually overpaid his child-support obligation. At a hearing on the motion to dismiss, the father orally argued that DOR’s claim for arrearages was barred by the doctrines of laches and “detrimental reliance.” The motion to dismiss was denied, and the case proceeded to a hearing to establish the amount of arrearages.

The hearing took place in January 2011. At the hearing, the father orally renewed his motion to dismiss, arguing that dismissal was justified by due-process violations he contended had occurred throughout the case. The hearing officer rejected the father’s due-process arguments, concluding that no prejudice stemmed from the delays. DOR then presented evidence that the father still owes $11,740.30 in arrearages. To contest this claim, the father presented testimony that he had received official notification in 2004 that his child-support obligation was satisfied. In addition, he testified that the income deduction order associated with this obligation had been lifted and that he had received the certificate showing a credit in his account in December 2004. The father and his current wife further testified that they had relied on these events as indicating that he no longer owed any child-support arrearages. He also presented testimony concerning his financial condition, indicating that he no longer has the ability to pay child-support arrearages.

Ultimately, the hearing officer found that there were outstanding arrearages of $11,740.30 as of January 6, 2011, and submitted a recommended order establishing this amount and denying the father’s oral motion to dismiss. The circuit court adopted the order, and the father timely moved to vacate it under Family Law Rule of Procedure 12.491(f). In the motion to vacate, the father asserted that the amount of arrearages the hearing officer found was incorrect and that alleged due-process violations required vacation of the circuit court’s order. At a hearing on the motion to vacate, the father argued that his right to due process had been violated by the delay in the determination of the final amount of his arrearages, citing the adage that justice delayed is justice denied. In addition, the circuit court opined that the father’s arguments suggested the applicability of the doctrines of laches and equitable estoppel. The circuit court invited the parties to argue these issues and submit memoranda of law on them. DOR participated in this process without objection. After reviewing the parties’ arguments, the circuit court acted on the motion to vacate by entering an order concluding not only that the doctrines of estoppel and laches applied but also that DOR’s unreasonable delay in seeking an arrearage determination after the vacation of the May 2003 order militated against establishing arrearages in 2011. The court found that the father’s circumstances had changed during the period of delay and that he had a right to rely on the representation to him that he did not owe child-support arrearages. DOR appealed this order.

DOR argues that the circuit court erred in three ways: (1) by considering the doctrines of laches and estoppel in the absence of an attempt by the father to plead these issues or prove them at an eviden-tiary hearing; (2) by applying the doctrines of laches and estoppel without sufficient evidence; and (3) by vacating the final order establishing arrearages on the basis of a violation of due process. We decline to address the first argument because DOR failed to object to the circuit court’s consideration of the doctrines at issue, even though it had a clear opportunity to do so. See Matar v. Fla. Int’l Univ., 944 So.2d 1153, 1157-58 (Fla. 3d DCA 2006) (recognizing that the preservation requirement applies even to issues of due process when there has been a clear opportunity to present the argument on appeal to the lower tribunal). DOR provided arguments on the applicability of these doctrines to the facts in the record, without voicing any objection concerning the procedural propriety of taking these doctrines into account. However, we find preserved, reversible error under DOR’s remaining arguments.

A trial court’s application of the doctrines of either laches or equitable es-toppel is reviewed for abuse of discretion, provided that there is competent, substantial evidence for each element of the doctrine applied. See Sun Cruz Casinos, L.L.C. v. City of Hollywood, Fla., 844 So.2d 681, 684-85 (Fla. 4th DCA 2003) (recognizing the abuse of discretion standard and the requirement of evidentiary support for a finding of estoppel); Cartee v. Carswell, 425 So.2d 204, 206 (Fla. 5th DCA 1983) (finding no abuse of discretion where the trial court found that no equitable principles, including laches, relieved the father of the duty to pay child support); Fla. Dep’t of Revenue ex rel. Hewett v. Grant, 913 So.2d 108, 109 (Fla. 1st DCA 2005) (reversing where the evidence was insufficient to support the doctrine of lach-es); State, Dep’t of Revenue ex rel. Dees v. Petro, 765 So.2d 792, 792 (Fla. 1st DCA 2000) (reviewing the application of equitable estoppel for competent, substantial evidence).

Laches has four elements: (1) conduct on the part of the defendant giving rise to the situation of which the complaint is made; (2) failure of the plaintiff to assert his or her rights by suit, even though the plaintiff has had knowledge of the defendant’s conduct and has been afforded the opportunity to institute suit; (3) lack of knowledge on the defendant’s part that the plaintiff would assert the right on which he or she bases the suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the plaintiff or the suit is held not to be barred. McIlmoil v. McIlmoil, 784 So.2d 557, 563 (Fla. 1st DCA 2001). It is proper to apply the doctrine of laches to child support matters, including the establishment of arrearages, only “under the rarest of circumstances.” Hewett, 913 So.2d at 109 (quoting Ticktin v. Kearin, 807 So.2d 659, 663-64 (Fla. 3d DCA 2001)). The prejudice to the defendant must be extreme to justify applying the doctrine of laches to a child support matter. Ticktin, 807 So.2d at 664.

A mere delay in filing suit is insufficient to establish the applicability of lach-es to “relieve a parent from the obligation to support his or her child.” Hewett, 913 So.2d at 109. Even when the delay is accompanied by a change of financial condition, these circumstances standing alone do not justify the application of laches. See id. Rather, there must be some evidence that the change of financial condition was caused by the delay, such that the change of conditions would render enforcement of the right asserted inequitable. See Logan v. Logan, 920 So.2d 796, 799 (Fla. 5th DCA 2006) (holding that the former husband failed to show the required prejudice where he did not testify that he would have acted differently during the period of delay if he had known the former wife would assert the children’s right to child support).

The doctrine of equitable estop-pel involves similar elements to laches, and the same considerations militate against applying it to child-support matters except under rare circumstances. Equitable es-toppel may bar recovery of a child-support arrearage only when there is “a showing that a party misrepresented a material fact upon which the party asserting estop-pel relied.” State, Dep’t of Revenue ex rel. Dees v. Petro, 765 So.2d 792, 792 (Fla. 1st DCA 2000). To satisfy the reliance prong of equitable estoppel, the party asserting the defense must prove that he or she made a detrimental change of position based on a belief in the misrepresented fact. Schroeder v. Peoplease Corp., 18 So.3d 1165, 1168 (Fla. 1st DCA 2009). Thus, the elements of equitable estoppel are “(1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.” Id. (citations omitted).

The evidence in the instant case was insufficient to meet the prejudice prong of laches or to establish any aspect of equitable estoppel. As to prejudice, although the father testified that he is presently unable to pay the arrearages, he did not testify that the delay in asserting the right to child support arrearages affected his financial decision-making during the period of delay. As to the doctrine of equitable estoppel, the father failed to present evidence of any misrepresentation by DOR or the mother. Additionally, although he stated he relied on the certificate issued by the clerk of the court in December 2004 indicating that he did not owe any past-due child support, he did not connect this reliance with any detrimental effect on his financial condition. Essentially, although he used the word “relied,” he testified simply that he believed the representation made on the certificate. Based on the evidence presented, the facts of this case do not justify the application of either equitable doctrine at issue.

The remaining inquiry is whether any alleged violations of due process justify the result the circuit court reached. Whether a violation of due process has occurred under a given set of facts is an issue of law to be reviewed de novo. Dep’t of Rev. ex rel. Poynter v. Bunnell, 51 So.3d 543, 546 (Fla. 1st DCA 2010). The right to procedural due process, which the father argues was offended here, includes notice and a meaningful opportunity to be heard. See id. Although the father asserted that he was not afforded notice of and an opportunity to be heard on certain matters, the circuit court did not make any findings in agreement with these assertions, and the record is insufficient to allow us, as an appellate court, to conclude that these claims are established as a matter of law. The circuit' court’s conclusion that the father was deprived of due process was based on the delay between the reservation of jurisdiction in December 2006 and the ultimate establishment of arrearages in January 2011.

The circuit court’s due-process analysis was based on the principle that litigants are entitled to as much finality as possible when a court is called upon to decide an issue. However, neither the father nor the circuit court cited any cases holding that an indefinite reservation of jurisdiction is a violation of due process. In some cases, such a reservation is improper and subject to reversal on appeal from the order reserving jurisdiction. See, e.g., Herman v. Herman, 889 So.2d 128 (Fla. 1st DCA 2004); Gergen v. Gergen, 48 So.3d 148 (Fla. 1st DCA 2010); Martinez v. Martinez, 573 So.2d 37 (Fla. 1st DCA 1990); Gruner v. Westmark, 617 So.2d 420 (Fla. 1st DCA 1993); Bovet v. Bovet, 563 So.2d 154 (Fla. 3d DCA 1990). But there is no violation of the right to due process unless the litigant is deprived of either notice or a meaningful opportunity to be heard before the court reaches a final decision on the matter as to which jurisdiction has been retained. See Poynter, 51 So.3d at 546 (defining the constitutional right to procedural due process); West v. West, 301 So.2d 823, 824 (Fla. 2d DCA 1974) (holding that another state’s reservation of personal jurisdiction over a Florida resident for the purpose of modifying its decree may last “as long as the effectiveness of the decree” and that no due-process violation occurs by the entry of a default modification against the Florida resident if the Florida resident was afforded proper notice). The father has not disputed that he received the December 2006 order reserving jurisdiction and the February 2010 motion that precipitated the final establishment of arrearag-es. Although we do not approve of the delays that took place in this case, we note that the father himself could have ended the delay by asking the court to establish the amount of arrearages at some point between the reservation of jurisdiction in December 2006 and the filing of DOR’s motion in February 2010.

Even if we were to conclude that an extended reservation of jurisdiction is a violation of the right to due process, we do not agree with the circuit court that relieving a parent of the obligation to pay child-support arrearages is the proper remedy. The doctrines of equitable estoppel and laches were the available means by which any injury the father suffered could have been redressed, if the circumstances justified any redress. Because the father failed to establish sufficient circumstances under one of these two doctrines, he is still obligated to pay any unsatisfied arrearag-es. Therefore, we reverse and remand to the circuit court to enter a final order establishing the- amount of arrearages, if any, the father has failed to pay.

REVERSED and REMANDED.

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


author: MARSTILLER, J.

text:
    James Harold STEWART, Appellant, v. LAKELAND FUNERAL HOME and Constitution State Service Company, Appellees.
    No. 1D11-1982.
    District Court of Appeal of Florida, First District.
    May 1, 2012.

      Jeffrey E. Appel of the Appel Law Group, Lakeland, for Appellant.
    J. Craig Delesie, Jr., of Kadyk & Dele-sie, Tampa, for Appellees.
   MARSTILLER, J.

James Harold Stewart (“Claimant”) appeals a final order of the Judge of Compensation Claims (“JCC”) denying com-pensability of injuries he sustained in a motorcycle accident while driving from his residence to work. Because section 440.092(2), Florida Statutes (2009), provides that an injury suffered while going to or coming from work does not arise out of or occur in the course of employment, and because neither the special errand nor dual purpose exceptions apply, the JCC correctly denied Claimant’s petition for benefits. We therefore affirm.

Claimant is a funeral director whose regular job duties included attending the funeral or memorial service for the deceased if he had been the family’s primary contact, even if the service occurred after regular work hours or on Claimant’s day off. On June 10, 2010, the date of the motorcycle accident, Claimant was scheduled to be off from work, but he had to attend a memorial service for a client that evening. Although the funeral home had staff to load the equipment needed for the service, Claimant, who normally would have gone directly to the service site, chose instead to go to the funeral home to load the equipment himself, with help from an assistant funeral director, before proceeding to the memorial service. On his way to the funeral home, he lost control of his motorcycle, fell, and was injured.

Codifying what is commonly known as the “going and coming” rule, section 440.092(2) provides:

An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.

See generally Alvarez v. Sem-Chi Rice Prod. Corp., 861 So.2d 513, 516 (Fla. 1st DCA 2003). The question here is whether Claimant’s ride to the funeral home falls under the going and coming rule. Claimant acknowledges that under the rule, an injury suffered during travel to or from work is not compensable. He asserts that the rule is inapplicable in his case, however, because on June 10, 2010, he was not regularly scheduled to work, and the purpose of the trip that day was to attend a funeral service, as required by his employer. Consequently, he argues, his ride to the funeral home either constituted a “special errand” or was for a “dual purpose.” See Swartz v. McDonald’s Corp., 788 So.2d 937, 943 (Fla.2001) (holding that “special errand or mission” statutory language encompasses both special errand and dual purpose exceptions to going and coming rule). And under those exceptions to the going and coming rule, he argues, his injury is compensable.

“The special errand exception includes employees who, at the time of injury, were on a special errand in response to a call from their employers, and is usually characterized by irregularity and suddenness.” Swartz, 788 So.2d at 943. Claimant’s need to attend a client’s memorial service was neither irregular nor sudden. Rather, being present at such services was a regular part of his job responsibilities as a funeral director — a significant part, one could surmise. And the facts do not show that the employer asked Claimant at the last minute to attend the service or to go to the funeral home for some purpose. Thus, the special errand exception does not apply.

Under the dual purpose doctrine, “an injury which occurs as a result of a trip, a concurrent cause of which was a business purpose, is within the course and scope of employment, even if the trip also served a personal purpose, such as going to and coming from work.” Id. The sole purpose of Claimant’s travel at the time of the accident was to go to work; regardless of whether he was required to go to the funeral home before heading to the service that day, he had not yet undertaken any business of the employer at the time of the accident. Because Claimant was simply going to work — travel deemed personal by section 440.092(2) — there was no business purpose to his travel. Thus, the dual purpose exception does not apply. The JCC correctly ruled, pursuant to section 440.092(2), that Claimant’s injuries are not compensable.

AFFIRMED.

WOLF, and PADOVANO, JJ., concur.


text:
    Reginald Lee SHORTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0020.
    District Court of Appeal of Florida, First District.
    May 1, 2012.
    Reginald Lee Shorter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 24, 2011, judgment and sentence, in Duval County Circuit Court case number 16-2009-CF-13742-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)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel .to represent petitioner on appeal.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    Donald A. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. ID 12-1414.
    District Court of Appeal of Florida, First District.
    May 1, 2012.
    Donald A. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Pursuant to Florida Rule of Appellate Procedure 9.040(b)(1), this cause is hereby transferred to the Leon County Circuit Court for further proceedings.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    Richard W. BINGHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0010.
    District Court of Appeal of Florida, First District.
    May 1, 2012.
    Richard W. Bingham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Trowell v. State, 706 So.2d 332, 337 (Fla. 1st DCA 1998), approved by State v. Trowell, 739 So.2d 77 (Fla.1999). Petitioner shall be allowed a belated appeal from the December 30, 2009, judgments and sentences, in Santa Rosa County Circuit Court case numbers 09000510CFMA, 09000524CFMA, 09000525CFMA, 09000526CFMA, and 09000527CFMA. 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(e)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    Antraveius Tyrell BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4348.
    District Court of Appeal of Florida, First District.
    May 1, 2012.

      Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Amended Opinion

PER CURIAM.

Antraveius T. Baker challenges his judgment of conviction and sentence for trafficking in more than 200 grams but less than 400 grams of cocaine. We affirm the conviction without comment, but we reverse certain costs imposed by the trial court and remand for a corrected sentencing order.

When the trial court orally announced sentence, it did not impose an assessment for (i) the sheriffs office investigation costs, (ii) the prosecution investigative cost, and (iii) the FDLE operation trust fund. These costs, which were assessed against appellant in the written order of sentence, are therefore improper. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Further, because appellant was not given the opportunity to contest the public defender fee, it too was erroneously assessed. See § 938.29(5), Fla. Stat. (2010). On remand, these costs are to be struck.

We otherwise affirm appellant’s conviction, and reject his argument that section 893.13(l)(a), Florida Statutes (2010), is unconstitutional. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

AFFIRMED in part, REVERSED in part and REMANDED.

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


author: LEVINE, J.

text:
    Betsy DIEUJUSTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3012.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2012.

      Steven W. Gomberg of the Law Office of Steven W. Gomberg, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, ■ West Palm Beach, for appellee.
   LEVINE, J.

The issue presented on appeal is whether there was evidence of appellant’s participation in any prior activity regarding a drug transaction sufficient to establish an agreement to traffic in oxycodone. We find, since there was insufficient evidence of appellant’s involvement in any pre-transaction discussions, conversations, or meetings with the co-defendant, that appellant’s conviction and sentence for conspiracy to traffic in oxycodone should be reversed.

Edward McCabe, an undercover officer from the Delray Beach Police Department, contacted David Levine for fifty additional oxycodone pills after initially purchasing sixteen pills. Levine told McCabe to come to Levine’s apartment. McCabe went to the apartment with $700 in marked currency. Levine introduced McCabe to Sarah Billett, who also resided at Levine’s apartment. Billet informed McCabe that “my guy’s here” and asked McCabe for the money. McCabe gave the money to Levine, who counted it and gave the money to Billett. Billett then walked to the parking lot with the currency. Billett approached a black Chevrolet Impala, which was registered to appellant, and “engaged in a brief conversation.”

Junior Julien was driving the Impala. Julien exited the vehicle and met with Billett “face to face” by one of the buildings. A passenger from the Impala, Lincoln Jackson, left the vehicle and looked “up and down” the roadway. Delray Beach police officers observed Billett counting out money and handing it to Ju-lien, who in turn, handed pills to Billett. Julien and Jackson returned to the Impala. During the transaction, the officers noticed another person in the back seat of the car, who turned out to be appellant. After the Impala drove away, Billett returned and gave forty-six oxycodone pills to McCabe. McCabe then left the residence. Meanwhile the Impala left the apartment complex and stopped about a block away. There, the driver, Julien, got out and drove away in a parked Ford Explorer. Appellant moved to the front seat and then drove the Impala to a nearby gas station, where officers approached appellant.

The officers observed appellant making a “downward push motion ... and trying to push something down to conceal it” in her purse that she was holding. After instructing appellant to give her purse to them, the officers found $400 which matched the investigative funds originally given to McCabe. The officers also found in appellant’s purse a bottle of pills prescribed by a doctor with appellant’s name on it. The pill bottle contained fifty-four pills, which tested positive for oxycodone. A forensic scientist could not determine whether the fifty-four pills came from the same batch as the forty-six pills given to McCabe. Appellant told the police officers that the $400 found in her purse was her rent money. Appellant was arrested and charged with trafficking in oxycodone and conspiracy to traffic in oxycodone.

At trial, appellant’s interview with the police was played for the jury. Appellant told the police that she was prescribed 240 pills per month by a physician for back pain and that she had a bigger bottle of pills at home. Appellant told the police that she called her boyfriend and asked him for some money. He said he did not have any but that she should go see his friend in order to get some money. According to appellant, that is why she went to see Julien. Appellant told the police that Julien told her to drive to the apartment and wait there.

At the end of the state’s case, appellant moved for a judgment of acquittal. The state opposed the motion by pointing out appellant’s “odd maneuver” in sitting in the back seat of her own car, and then getting in the front seat and driving after Julien left the car. The state also pointed to $400 of “buy money” and the oxycodone pills on appellant as grounds to deny appellant’s motion for judgment of acquittal. The trial court denied the motion.

Appellant testified in her defense that her live-in boyfriend paid $400 per month for rent. Appellant called her boyfriend to obtain his share of the rent money. After speaking with him, she drove her car to Julien’s girlfriend’s house, where appellant picked up Julien. Appellant drove Julien “to go get the money that somebody owed him.” After getting the money owed to him, Julien was to pay appellant the money Julien owed to appellant’s boyfriend. Julien got out of the vehicle at the apartment; appellant did not see where Julien went or what he did. Julien came back to the vehicle with the $400 he owed appellant’s boyfriend. Appellant testified that when police officers observed her reaching into her purse, she was about to pay for gas at the gas station. Finally, appellant testified that she had the oxycodone in her purse because she had been in a “bad car accident.”

After the trial court denied appellant’s renewed motion for judgment of acquittal, the jury found appellant guilty of conspiracy to traffic in oxycodone with codefen-dants Junior Julien and Lincoln Jackson. The jury acquitted appellant of trafficking in oxycodone. Appellant appeals her conviction for conspiracy to traffic in oxyco-done.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “In moving for a judgment of acquittal, a defendant admits” not only “the facts in evidence,” but also “every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence.” Richards v. State, 37 So.3d 925, 926 (Fla. 4th DCA 2010). “A court should grant a motion for judgment of acquittal only if ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’ ” Joseph v. State, 65 So.3d 587, 588 (Fla. 4th DCA 2011) (citation omitted).

“[T]o establish a conspiracy and appellant’s participation in it, the state must prove ‘an express or implied agreement or understanding between two or more persons to commit a criminal offense,’ and an intention to commit that offense.” Leigh v. State, 967 So.2d 1102, 1104 (Fla. 4th DCA 2007) (quoting Arguelles v. State, 842 So.2d 939, 944 (Fla. 4th DCA 2003)). “The agreement may be inferred from the circumstances; direct proof is not necessary.” Schlicher v. State, 13 So.3d 515, 517 (Fla. 4th DCA 2009). “Florida courts have generally affirmed convictions for conspiracies to buy or sell drugs where the ‘defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase.’ ” Id. (quoting Leigh, 967 So.2d at 1104). “However, when the evidence establishes ‘that the defendant was merely present at the scene of the crime, had knowledge of the crime, or even aided others in the commission of the crime,’ it is inadequate, without more, to sustain a conspiracy conviction.” Jackson, 74 So.3d at 566 (citations omitted).

Further,

[o]nly where ... the defendant’s involvement in the enterprise appears to be minimal at best, evincing no prearrange-ments with the other defendants, or where ... the defendant has been acquitted of an accompanying drug trafficking charge, thereby discrediting much, if not all of the evidence against the defendant, have Florida courts been inclined to reverse such conspiracy convictions. Indeed, the typical drug trafficking transaction involving a series of clandestine meetings between several defendants and an undercover police officer which eventually leads to a sale or purchase of illegal drugs ... presents the classic example of a criminal conspiracy; by definition, such a scenario inferentially establishes, as a general rule, a prior agreement among the defendants to effect a sale or purchase of illegal drugs, else such a sale or purchase with its complicated arrangements would never have taken place.

Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991) (citations omitted).

In the present case, the entirety of the evidence presented against appellant was that appellant’s car was utilized in the transaction while appellant was in the backseat, and later that appellant possessed oxycodone in a prescription bottle in her name and $400 in currency initially given to another individual by McCabe.

In Voto v. State, 509 So.2d 1291, 1293 (Fla. 4th DCA 1987), the defendant was a passenger in a car that drove to the scene of a drug transaction. The defendant got out of the car, looked around the parking lot, and spoke to some other participants in the transaction. We found the “evidence of participation in any underlying understanding or agreement” insufficient to sustain the defendant’s conviction for conspiracy, even though there was sufficient proof of the defendant’s participation as an aider and abettor. Similarly, in the related case of Pennington v. State, 526 So.2d 87, 88 (Fla. 4th DCA 1987), a defendant’s presence at the scene combined with his statement that “[fit’s in the white car over there” was found insufficient to prove his participation in a conspiracy. See also Pickover v. State, 580 So.2d 287, 290 (Fla. 4th DCA 1991) (evidence “failed to prove that appellant had any knowledge of the transaction or had been involved in a conspiracy to effectuate the sale”); Webster v. State, 646 So.2d 752, 753 (Fla. 2d DCA 1994) (conspiracy conviction reversed because “the record fails to establish any particular arrangement between” defendant and confidential informant’s acquaintance); Mickenberg v. State, 640 So.2d 1210, 1211 (Fla. 2d DCA 1994) (despite the fact that defendant was “[c]learly ... aiding and abetting,” his participation did “not reach the level of the separate crime of conspiracy”). The quantum of evidence in this case is similar to the quantum of evidence in Voto and Pennington. As in those cases, we find the state’s evidence insufficient to establish appellant’s participation in a conspiracy, since there was no evidence of any meetings, conversations, or pre-arrangements between appellant and Julien from which the jury could infer the existence of an agreement.

Additionally, as mentioned, where “the defendant has been acquitted of an accompanying drug trafficking charge,” much, if not all, of the evidence against a defendant on an accompanying conspiracy charge is discredited. Rouse v. State, 583 So.2d 1111, 1113 (Fla. 4th DCA 1991) (quoting Pino, 573 So.2d at 152). In the present case, appellant was acquitted of trafficking in oxycodone. We, therefore, are also required to discredit much of the evidence against appellant as to the conspiracy charge.

In summary, we are compelled to reverse appellant’s conviction and sentence for conspiracy to traffic in oxycodone and remand for entry of a judgment of acquittal.

Reversed and remanded with directions.

TAYLOR and GERBER, JJ., concur.

      . This court reversed codefendant Jackson's conviction and sentence for conspiracy to traffic in oxycodone. Jackson v. State, 74 So.3d 563 (Fla. 4th DCA 2011).


author: SUAREZ, J. SALTER, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee, Successor in Interest to Bank One, as Trustee for Credit Suisse First Boston MBS 2002-26, Appellant, v. Tonya COWELL; Unknown Spouse of Tonya Cowell; John Doe, Jane Doe as Unknown Tenant(s) in possession of the subject property, Appellees.
    No. 3D11-239.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, and Hinda Klein and Rolando A. Soler, Hollywood, for appellant.
    Tonya Cowell; and Peter D. Fellows and Sheila Delancey, in proper persons.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

U.S. Bank appeals the trial court’s dismissal without prejudice of the foreclosure action in this matter. The dismissal is effectively a dismissal with prejudice as U.S. Bank is now time-barred from refiling. Based on the facts presented, we reverse. The administrative memorandum that served as the basis for this dismissal only permits sanctions after multiple deficiencies and does not support dismissal after a single deficiency, as was the case here. For that reason, the lower court improperly dismissed U.S. Bank’s case and we reverse.

The Eleventh Circuit issued an administrative memorandum in 2010 which requires movants for summary judgment in foreclosure cases to file a packet of materials. The memorandum specifically states that an incomplete, or otherwise deficient, packet will result in a rejection notice be-mg sent out. The packet will be held for pick-up and a hearing date will not be scheduled. The memorandum also states that “multiple rejections may constitute grounds for sanctions.” U.S. Bank filed the present motion for summary judgment prior to the administrative memorandum being issued. U.S. Bank then filed the packet, which did not comply with the administrative memorandum and was, therefore, deficient. The lower court then dismissed U.S. Bank’s case without prejudice. In practice, the order acts as a dismissal with prejudice because the statute of limitations has run on the bank’s cause of action.

“Dismissal is the ultimate sanction in the adversarial system, [and] it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve such a result.” Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993); Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366 (Fla. 3d DCA 2011). The ultimate sanction is not called for in this particular case. U.S. Bank filed only one deficient packet in this matter. Lesser sanctions, such as the rejection notice prescribed by the administrative memorandum, would have sufficed.

Reversed and remanded, to be reinstated.

SALTER, J.

(concurring).

I agree that the dismissal of the foreclosure case below must be reversed and that the case must be reinstated. I write separately to highlight additional instances of delay and lack of diligence by the lender and its trial-level counsel apparent from this record.

This is a residential mortgage closed in April 2002. The loan was in default for non-payment by November 2002. In March 2003, and despite the fact that monthly loan payments were four months in arrears, the loan was assigned to an institutional trustee (a predecessor of the appellant) with a pool of mortgages for securitization.

The appellant commenced its foreclosure action over three years later, although the borrower made no payments in the interim. The motion for summary final judgment of foreclosure at issue in this appeal was not filed until October 2010. In addition to the appellant’s failure to comply with the circuit court administrative order applicable to such motions, the appellant filed a faeially-incorrect “affidavit of indebtedness” executed by a vice president of loan operations in South Carolina on September 14, 2010. In addition to $77,678.38 of principal, accrued interest of $54,566.21, and “pre-acceleration late charges” of $2,386.23, the affidavit included $34,237.07 for “escrow advanced by plaintiff.” The actual total of the itemized line items in the “escrow advanced” category, however, is only $19,121.19. The difference, over $15,000 in favor of the lender, appears to be a material misstatement of the amount due rather than a typographical error.

In addition, the October 2010 motion for summary judgment makes no mention of the appellant’s recorded equitable lien obtained in December 2009 in the case. A predecessor circuit judge imposed the first-priority equitable lien for $117,252.58 against a defendant in possession, the property, all other defendants, and “any person or parties claiming by, through, or under them since the institution of this suit.” The December 2009 recorded order also directed the sale of the property to satisfy the lien. The record, the September 2010 affidavit of indebtedness, and the October 2010 motion for summary judgment do not explain (a) why the property was not sold to satisfy the equitable lien or (b) why the December 2009 and September 2010 computations of all amounts outstanding are so different (the difference is far greater than the interest accrued over the intervening months).

The record in this case also discloses that the trial court issued an order to show cause why the case should not be dismissed for lack of prosecution in 2008. When the trial court determined that there was good cause to allow the case to remain pending, the judge made a handwritten annotation on the order, “case shall be aggressively moved.” A review of the docket confirms that the case was not aggressively moved.

Florida Rule of Judicial Administration 2.250(a)(1)(B) establishes a “presumptively reasonable” time period for completion of a non-jury civil case as 12 months from filing to final disposition. The circuit judges in this district work hard to comply with that objective (and regularly do better), but active, focused efforts by institutional lenders and their attorneys are also required. In Kozel, the Supreme Court of Florida stated that it “is vitally concerned with the swift administration of justice at both the trial and appellate levels,” that delays which create “significant problems of judicial administration” are one of the factors pertinent to the imposition of sanctions, and that “a sanction less severe than dismissal with prejudice” may be employed when that is a viable alternative. Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). Although we have concluded that in this instance dismissal of the case was too harsh a sanction, a trial court’s hands are not tied when a lender fails to diligently prosecute a case or files incorrect affidavits.

      . The lender/appellant's attorneys in this appeal are not implicated in the delay and lack of diligence described in this concurrence.

      . The enumerated line items are for taxes, hazard insurance, property inspections, mortgage insurance, "broker’s price opinion,” and property preservation.


author: WELLS, Chief Judge.

text:
    B.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1709.
    District Court of Appeal of Florida, Third District.
    May 2, 2012.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Danielle J. Graziano and Kyle B. Teal, Certified Legal Interns, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   WELLS, Chief Judge.

B.B. appeals from a determination of delinquency on one count of battery. See § 784.03, Fla. Stat. (2010). For the following reasons, we reverse.

The victim of this crime, Sharon Austin, is the mother of the defendant, seventeen year old B.B., and nineteen-month old T.Y. The day of the incident, Austin and B.B. argued, prompting B.B. to leave home and not return until 11:30 p.m. While B.B. was gone, Austin attempted to enter B.B.’s bedroom to check on some pets only to discover that the door was locked. When Austin tried to unlock the door with a paperclip, the paperclip broke in the lock. After B.B. returned home and discovered that she could not open the door to her room, she began to yell at her mother. Austin, according to B.B., began to curse at her and threatened to hit her if she did not quiet down because B.B. was going to awake the nineteen-month old sleeping in another room. After B.B. responded “I don’t care. That’s not my problem,” and continued to escalate her verbal protest, Austin swatted B.B. on the head in an attempt to get her to “snap out of it.” While admittedly unharmed and only surprised by the swat, B.B. began beating on her mother with a cell phone which she was holding in her hand, cutting her mother’s nose, raising a number of lumps on her head and causing a nose bleed. Austin called for help and Officer Potu responded, arresting B.B. because she wanted to separate mother and daughter and B.B. was the least injured.

B.B. was charged with a single count of battery. The day before trial, B.B., claiming self defense, filed a pretrial motion in limine seeking permission to inquire into her mother’s prior acts of violence, maintaining: “[t]he past acts of violence committed by the alleged victim go directly to the defense, because they reflect on the reasonableness of B.B.’s actions.” The trial judge denied the motion ruling:

Here is my ruling. I am not striking the motion ...
However I am denying it. Any self defense case that you wish to put on is going to be limited to actions which were taken right around the incident.

At the close of the evidence, B.B. moved for dismissal, again arguing that B.B. had acted in self defense, maintaining that B.B. had a reasonable belief that her conduct was necessary to defend herself. The State maintained that B.B. had responded with unreasonable force and the trial judge agreed:

[Tjhat with regard to self defense, dealing in self defense one can use reasonable force. The evidence adduced here today demonstrates, B.B., that you hit your mom three or four times. That was no reasonable force. Therefore I have no choice but to find you delinquent.

The court withheld adjudication, and B.B. was sentenced to six months of probation, an anger management course, a curfew, and family therapy. At a hearing for reconsideration, the defense again argued that Austin’s prior, specific acts of violence should have been admitted, as relevant to the determination of whether B.B. exercised reasonable force. The trial court adhered to its prior rulings.

We agree with B.B. that the trial court erred in concluding that Austin’s prior violent acts were not admissible when the key issue to her defense was the reasonableness of the force used against her mother. See Munoz v. State, 45 So.3d 954, 957 (Fla. Sd DCA 2010) (“[T]he purpose of specific acts evidence in a self-defense case is to demonstrate the reasonableness of the defendant’s fear at the time of the incident. State v. Smith, 573 So.2d 306 (Fla.1990); Sanchez, [445 So.2d 1, 2 (Fla. 3d DCA 1984) ]; Reddick v. State, 443 So.2d 482 (Fla. 2d DCA 1984); Marcum [v. State, 341 So.2d 815, 817 (Fla. 2d DCA 1977) ].”); Hedges v. State, 667 So.2d 420, 422 (Fla. 1st DCA 1996) (footnote omitted) (“[E]vi-dence either of the victim’s reputation for violence or of specific prior acts of violence is admissible, when the defendant knew of the victim’s violent acts or of his violent reputation at the time of the alleged offense. Such evidence tends to show that the defendant acted in self-defense. Smith v. State, 606 So.2d 641 (Fla. 1st DCA 1992). Evidence of prior specific acts of violence by the victim is admissible because it is relevant ‘to reveal the reasonableness of the defendant’s apprehension at the time of the incident.’ Id. at 642-43, citing Quintana v. State, 452 So.2d 98, 100 (Fla. 1st DCA 1984).”); Toledo v. State, 452 So.2d 661, 662 (Fla. 3d DCA 1984) (“[T]he kind and degree of force which may lawfully be used in self-defense is ‘limited by what a reasonable person in the same situation as such person, ... then would believe to be necessary.’” (quoting State v. Scroggins, 91 Idaho 847, 433 P.2d 117, 119 (1967))).

Here, Austin’s prior acts were offered to illustrate B.B.’s state of mind during the altercation. There was no dispute that Austin had hit B.B. in the face, constituting a triggering overt act. See Nelson v. State, 739 So.2d 1177, 1178 (Fla. 4th DCA 1999). However B.B. was precluded from explaining that because Austin had in the past abused her, pulling her hair out by the roots and scratching and cutting her, she was fearful during the current altercation thereby justifying the amount of force used against her mother. This was error.

Because we are unable to say that the court’s error in precluding this testimony was harmless beyond a reasonable doubt, see State v. DiGuilio, 491 So.2d 1129 (Fla.1986), the order under review is reversed and this case is remanded.