author: COHEN, J.

text:
    Dorothy Earlene CRUSSELLE, Appellant, v. Kenneth D. MONG, Appellee.
    No. 5D10-948.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    Rehearing Denied May 3, 2011.

      Adam J. Kohl and Todd J. Sager of Law Offices of Kohl & Smith, Jacksonville, for Appellant.

      James H. Wyman of Hinshaw & Culbertson LLP, Fort Lauderdale, for Appel-lee.
   COHEN, J.

Dorothy Earlene Crusselle, Appellant, challenges the trial court’s order directing a verdict in favor of Appellee, Kenneth D. Mong, on her claims for breach of fiduciary duty and undue influence as well as denying her claim for punitive damages. Appellant’s claims stem from her attempt to recoup losses on an option to purchase riverfront property she gave Appellee. We reverse the directed verdict on Appellant’s claim for breach of fiduciary duty, but otherwise affirm.

Appellant met Appellee, a ReMax Realty agent, in 2002 when selling some property in Palatka. At that time, she had over $1 million in the bank and told Appel-lee about her financial situation. The two began to socialize in her home, after church, and for dinner. Over time, they became good friends. Appellee was then 48 and Appellant, age 81. She was widowed fifteen years earlier and was not close to her adult children. Appellee was kind to Appellant; she trusted him and considered him to be like a son. Appellee allegedly told her-that God had placed her in his path to help her. Appellee took an interest in Appellant’s finances and, in 2005, assisted her with the purchase and sale of an investment property on SR13. Even though Appellee was not a party to the transaction, he made an unusual agreement to purchase the property from Appellant if she was unable to sell it in five months, to pay her three and one-half percent interest on the $769,000 purchase price, and to reimburse her for any loss she incurred on its sale. Upon closing, Appellee waived his real estate commission and Appellant made a profit of $72,000 on the sale of the property.

At the same time, Appellee was negotiating to purchase the subject unimproved riverfront property for $1,125 million where he intended to build his dream home. Appellee told Appellant he would build her a cottage there. When his financing fell through, Appellee had to find an alternative source. Appellee asked to borrow the entire purchase price from Appellant and, after considering several options, Appellant decided to purchase it outright and give Appellee a right of first refusal and purchase option. Appellant purchased the property for $1,125 million cash and executed an option to purchase with right of first refusal in Appellee’s favor. In return, Appellee agreed to pay her $3600 per month for sixty months, pay all taxes and maintenance on the property, and construct a vehicle bridge to the property. Difficulties arose, the real estate market collapsed, and the relationship between them soured. After Appellee ceased making his monthly payments, Appellant filed this lawsuit.

Only one of Appellant’s issues merits discussion — whether the trial court erred in directing a verdict on her claim for breach of fiduciary duty. Viewing all the evidence and inferences in her favor, as the trial court must, a directed verdict may be granted only when no view of the evidence or inferences therefrom could support a verdict for the non-moving party. See Blizzard v. Appliance Direct, Inc., 16 So.3d 922, 925 (Fla. 5th DCA 2009). An order granting a directed verdict is reviewed de novo. Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009). “If there are conflicts in the evidence or if different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.” Marriott Int’l, Inc. v. Perez-Melen dez, 855 So.2d 624, 628 (Fla. 5th DCA 2003).

The elements of a cause of action for breach of fiduciary duty are (1) the existence of a duty, (2) breach of that duty, and (3) damages flowing from the breach. Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So.3d 111, 116 n. 2 (Fla. 2d DCA 2009). Where, as here, there is not an express fiduciary relationship, one may be implied in law based on the “specific factual situation surrounding the transaction and the relationship of the parties.” Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994).

Appellant asserts that the existence of a fiduciary duty will be found to arise where one party induces the reliance of the other party. See id. Reliance is a critical element, and how it is evoked may be based on the particular factual circumstances surrounding the transaction. A fiduciary relationship exists when one is under a duty to act, or give advice, for the benefit of another upon matters within the scope of that relation. Doe v. Evans, 814 So.2d 370, 374 (Fla.2002). “An implied fiduciary relationship will lie when there is a degree of dependency on one side and an undertaking on the other side to protect and/or benefit the dependent party.” Masztal v. City of Miami, 971 So.2d 803, 809 (Fla. 3d DCA 2007). “A fiduciary relation may result from an offer of assistance where the nature of the proposal is one that is naturally calculated to repose confidence and trust, in the one making the proposal. The relation and correlative duties need not be legal but may be moral, social, domestic or merely personal.” Harrell v. Branson, 344 So.2d 604, 607 (Fla. 1st DCA 1977) (citations omitted).

In this case, both parties presented evidence of their divergent views on the existence of a fiduciary duty. Appellee presented evidence that Appellee held himself out as a real estate agent experienced in luxury riverfront properties and brought Appellant investment proposals, like the instant one, that he represented were excellent investment opportunities. Appellant and her daughter also testified that Appellee told her he would take care of her, that she would “never lose a dime,” and that she could trust him. Appellee also stated on more than one occasion that he would build a small house for Appellant on the property. There was also evidence-that Appellant contacted a bank officer and an attorney recommended by the bank, but disregarded their sound advice against the purchase. By these actions, a jury might conclude that Appellant was acting independently or that she was swayed by Appellee’s expertise and prom: ises of shelter and security in her dotage. Viewing the evidence in the light most favorable to Appellant, a jury could conclude an implied fiduciary relationship existed. The array of facts on the question should be considered by a jury.

Because we conclude that a jury must resolve conflicting evidence on the question of Appellee’s breach of a fiduciary duty, we reverse the directed verdict on this count and remand for further proceedings. We otherwise affirm.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

PALMER and TORPY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Walter J. ELLIOTT, IV, Petitioner, v. Palm Beach County Sheriff Ric BRADSHAW, Respondent.
    No. 4D11-828.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2011.

      Gregory J. Morse of Morse & Morse, L.L.C., West Palm Beach, for petitioner.
    Joan Elliott Pavlick, West Palm Beach, pro se.
   PER CURIAM.

Petitioner Walter J. Elliott IV, the former husband (hereinafter “husband”) in a dissolution of marriage action, seeks to quash a commitment order entered following a finding of civil contempt. Because the trial court’s conclusion that husband has the present ability to pay is speculative, and is not supported by competent substantial evidence, we grant the petition. The trial court may hold further proceedings regarding husband’s present ability to pay or initiate criminal contempt proceedings if appropriate.

Background

The parties divorced in October 2007. The final judgment required that husband pay former wife (hereinafter “wife”) $3000 per month in alimony through October 2010. In April 2010, the wife moved to have the husband held in contempt for failure to pay. The court referred the matter to a general master, and on June 29, 2010, a magistrate held a hearing and entered a report. The magistrate made factual findings and recommended that husband be found in civil contempt for willfully violating the court’s order and that he be ordered to pay a purge of $37,999,50 within sixty days.

In July 2010, the .trial court accepted the magistrate’s factual findings and recommendation. Husband did not pay the purge by the deadline, so the wife moved to have him committed. The court again referred the matter to a magistrate who held a commitment hearing and found that husband had not made the slightest effort to comply and that the husband has sufficient equity in his home to pay the purge. In November 2010, the court approved the finding and ordered husband taken into custody.

Husband challenged the commitment order, and the trial court held hearings regarding husband’s ability to pay. In the interim, husband paid $500 towards the purge. On February 28, 2011, the court again found that husband had the present ability to pay based on his equity in his Palm Beach home which had been listed for sale at $2.25 million. Husband indicated that the price had been reduced but did not indicate the new price.

The court ordered the Sheriff to take husband into custody until he pays the purge. The court recommended work release which would permit the husband to be free to work during the day but would require him to return to jail after work.

On March 14, 2011, the husband was arrested and remains in the Sheriffs custody. In this proceeding, husband argues that the trial court’s order is insufficient and that he lacks the present ability to pay. He asks to be immediately released.

Analysis

The purpose of civil contempt is to compel a party to comply with a court order or to compensate a movant for losses sustained as a result of the contemnor’s conduct. Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985); Fla. Fam. L.R.P. 12.615 (“Civil Contempt in Support Matters”). Civil contempt is not intended to punish, and the contemnor must have the present ability to comply with the order, the so-called “key to his [or her] cell.” Bowen, 471 So.2d at 1277.

Criminal contempt, on the other hand, is used to vindicate the authority of the court and punish an intentional violation of a court order. Id. Criminal contempt proceedings are governed by different procedures. See Fla. R.Crim. P. 3.830 (“Direct Criminal Contempt”); Fla. R.Crim. P. 3.840 (“Indirect Criminal Contempt”). A trial court may summarily punish direct criminal contempt that occurs in the trial court’s presence. An indirect criminal contempt proceeding requires that the court issue an order to show cause. Fla. R.Crim. P. 3.840(a). The defendant in an indirect criminal contempt proceeding is entitled to the constitutional protections afforded to criminal defendants. Bowen, 471 So.2d at 1277.

In family law civil contempt proceedings, where a party has refused to pay court-ordered support, the court must set a purge amount, and the contemnor must have the present ability to pay that amount to purge the contempt. Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997). Before ordering a party jailed to compel him or her to pay support, the trial court must affirmatively find that the party has the present ability to pay the purge amount. Bowen, 471 So.2d at 1277 (“Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door”).

An order holding a party in civil contempt must recite the facts upon which the finding of present ability to pay is based. Fla. Fam. L.R.P. 12.615(d)(1); Vazquez v. Vazquez, 827 So.2d 384 (Fla. 4th DCA 2002). See also Fla. Fam. L.R.P. 12.615(e) (“The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding”).

Pursuant to section 61.14(5)(a), Florida Statutes (2010), husband is presumed to have a continuing ability to pay the alimony award, and he had the burden at the contempt hearing of proving that he lacks the ability to pay. See Flores v. Bieluch, 814 So.2d 448 (Fla. 4th DCA 2001) (recognizing that section 61.14(5)(a) controls the burden of proof in this type of case).

A trial court’s factual finding regarding ability to pay will be sustained if supported by competent substantial evidence. See, e.g., Cleveland v. Cleveland, 841 So.2d 648 (Fla. 4th DCA 2003) (holding that competent substantial evidence did not support the trial court’s conclusory finding that husband had the present ability to pay and noting that the presumption of section 61.14(5)(a), Florida Statutes, is rebuttable).

Present Ability to Pay

At the February 22, 2011 hearing, husband testified that he has only $322 “in the world” which he could pay towards the purge. He alleged that he had, already sold all his assets and that, with a paycheck he was expecting from his marketing job the next day, he could pay a total of $622. At the November 2, 2010 hearing, husband testified that he had already sold everything he owns to buy groceries, gas, and pay bills. He acknowledged that he had received “loans” from family members over the prior months — while he continued to reside in the Palm Beach home— but that he had not kept track of exactly how much he had borrowed and expressed no intent to pay the “loans” back.

At the November 2010 hearing, husband had indicated that he was working on a deal that would yield him a $300,000 commission. He asked that he not be incarcerated so that he could work on the deal which would take months to complete. He presented no evidence regarding the status of this deal at the February 2011 hearing. Husband’s business plan of selling novelty square-inch parcels of real estate in Nantucket to tourists was “not flying.”

Husband owns a half interest in a large home on Palm Beach' Island. His mother owns the other half. Husband testified that the house is in foreclosure and has a first and second mortgage totaling about $1 million. Husband believed that the house was worth more than $1 million. He had the house listed for sale at $2.25 million but had not received any offers since March 2010. The house had been listed for rent by a real estate agent (husband’s aunt) at $11,000 per month. Husband introduced a tax lien for $541,143.50 against his mother’s half interest in the property and argued that, with the encumbrances and costs of a sale, “it’s probably about a push.”

Wife explained that the husband’s mother owns other assets besides this house and that her tax debt would not impact the husband’s equity in his half-interest in the home.

In 2010, the Palm Beach Property Appraiser listed the total market value of the property at just over $1.23 million. The evidence at the June 29, 2010 hearing established that the mortgage balance on the property was $800,000.

The trial court found that husband had the ability to pay the nearly $38,000 purge through his equity in the home and that husband could presently sell the home to pay the purge.

We agree that the record supports the first portion of this conclusion regarding the sufficiency of the husband’s equity in the home to cover the purge amount, but we are not so sure that in the presently distressed housing market husband could immediately sell the home even if he greatly reduced the price. The trial court’s stated basis for the husband’s ability to pay depends on disbursement of the proceeds from some future potential sale of the property. Because the conclusion is speculative, and the finding regarding present ability to pay is not supported by competent substantial evidence, we grant the petition and quash the trial court’s order. See Shelton v. Shelton, 965 So.2d 179 (Fla. 2d DCA 2007) (holding that trial court abused its discretion in adopting the magistrate’s finding that husband “should have” funds remaining from sale of home because the finding was based on speculation not evidence).

Throughout these proceedings, wife has presented evidence that husband has previously refused to pay alimony although he then had the ability to pay. These allegations are relevant to whether the husband should be punished for willfully violating court orders.

For example, wife presented evidence that husband had rented the Palm Beach Island home at $7500 per month from April or March 2009 until March 2010. Husband should have collected about $90,000 during this time but paid no alimony. Wife also presented a check showing that husband had paid $11,000 for his girlfriend’s child to attend private school. Husband admitted paying towards the tuition but said that he paid only $8000.

In the order entered following the June 29, 2010 hearing, the magistrate made a number of findings regarding the' husband’s ability to pay and his refusal to pay the wife any alimony. Husband admitted at that hearing that $29,000 had recently been deposited in his account but alleged that the funds belonged to his mother and that he used the money to pay expenses for her. Husband sold his Porsche 911 for $18,500 and his Rolex watch for $1200: Husband had been paying his girlfriend’s $2500 per month rent through some of this period. In early 2010, husband received $24,200 when the Breakers Hotel refunded his country club membership fee. Despite all this, husband did not pay alimony. The magistrate found that the vast majority of the husband’s testimony lacked credibility and that the husband’s lifestyle was inconsistent with his reported income. The trial court approved and adopted these findings in the order finding husband in civil contempt.

In her response to this court, wife points out that she presented evidence at the February 2011 hearing that husband had again rented the home. At a first appearance hearing held March 15, 2011 — which was not reported and is unavailable, wife represents that husband admitted that he was currently renting the property through March 2011. He did not collect rent in January 2011 — but collected $7500 rent for December 2010, February 2011, and March 2011. This testimony appears contrary to the husband’s testimony at the February 2011 hearing where he denied having other sources of income and alleged that $622 was all the money he could possibly muster.

The above evidence may be relevant to whether the husband should be punished for willfully violating court orders and whether he has divested himself of the present ability to pay. A finding that a party divested himself of assets, does not substitute for a finding of present ability to pay. Apa v. Apa, 693 So.2d 702 (Fla. 4th DCA 1997). “Criminal contempt proceedings are appropriate where the party in default has continually and willfully neglected court-ordered support obligations, or has affirmatively divested him or herself of assets and property.” Brown v. Smith, 705 So.2d 682, 684 (Fla. 4th DCA 1998) (citing Bowen, 471 So.2d at 1279).

The law is clear that husband cannot be incarcerated indefinitely for civil contempt where husband lacks the present ability to pay even if husband has willfully caused his current inability to pay. See Galligher v. Galligher, 643 So.2d 706 (Fla. 4th DCA 1994); Campbell v. Campbell, 571 So.2d 555 (Fla. 4th DCA 1990).

To reiterate, we hold only that the trial court’s order finding that husband’s equity in his home gives him the present (i.e., “now”) ability to pay the purge amount is speculative and not supported by competent substantial evidence. This opinion does not preclude further proceedings regarding husband’s present ability to pay and does not preclude the trial court from initiating indirect criminal contempt proceedings if appropriate.

The trial court based its finding regarding ability to pay solely on the husband’s equity in the house. Husband has acknowledged that he has received a number of “loans” from family members throughout this time. Wife notes that husband is represented by privately-retained counsel in the proceedings below, and a different attorney was retained to file this petition. Husband is represented by different attorneys in the foreclosure proceedings. The wife has good reason to question how the husband has the money to pay his attorneys but only $622 “in the world” to pay the purge.

In some circumstances, courts have recognized that the assets of close friends and family members may be considered in determining present ability to pay a purge. See Aburos v. Aburos, 34 So.3d 131, 134-35 (Fla. 3d DCA 2010) (citing Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002), rev. denied, 854 So.2d 660 (Fla.2003), cert. denied, 540 U.S. 1109, 124 S.Ct. 1074, 157 L.Ed.2d 895, (2004), and Mendana v. Mendana, 911 So.2d 130 (Fla. 3d DCA 2005)).

We grant the petition and quash the trial court’s commitment order which found present ability to pay based on a potential future sale of real estate. The Sheriff shall immediately release petitioner as his continued incarceration is not authorized at this time. This decision does not preclude further civil contempt proceedings or indirect criminal contempt proceedings. Additionally, this opinion should not be construed as limiting the trial court’s ability to establish a different purge provision, such as one requiring husband to reduce the listing price of the house.

Petition for writ of habeas corpus granted.

GROSS, C.J., MAY and CONNER, JJ„ concur.

      . Husband initially sought a writ of mandamus or prohibition to prevent the Sheriff from taking him into custody. The Sheriff subsequently arrested husband, and we have redes-ignated this case as a petition for a writ of habeas corpus.


author: SALTER, J. WELLS, Judge, EMAS, J.,

text:
    In the Interest of T.J., a minor child.
    No. 3D10-1111.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.

      Immigrant Children’s Justice Clinic, Karen Pita Loor, and Amber Brishne Glasper, Certified Legal Interns, for appellant.
    No appearance for appellee.
    Before WELLS, SALTER, and EMAS, JJ.
   SALTER, J.

Representatives of the Florida International University College of Law Immigrant Children’s Justice Clinic, as next friends of T.J., a minor, appeal a circuit court order summarily denying their amended petition for an adjudication of dependency as to T.J. We review the summary denial of the amended petition under a de novo standard. We reverse and remand the case on the basis of our analysis of section 39.01, Florida Statutes (2010), and persuasive decisions of the Fourth and Fifth District Courts of Appeal. The issue before us is whether, in the case of an immigrant child residing in Florida whose mother has died and whose father’s whereabouts are unknown, but who has been cared for by a volunteer with no legally-determined custody, the circuit court may deny a petition for dependency as a matter of law. We also address a second point considered by the trial court, the sufficiency of two affidavits of diligent search regarding a father who abandoned T. J. and her mother when T. J. was a small child.

The Amended Petition for Adjudication of Dependency

The verified amended petition for adjudication of dependency alleged the salient facts, all assumed to be true for purposes of this analysis. T.J. was born in Turks and Caicos and came to Florida at the age of four months. She has lived here continuously since then. She will turn 18 on August 2, 2011. She is enrolled in a Miami-area high school.

T.J. lived with, and was cared for by, her mother until 2004, when her mother passed away. Her father left T.J. and her mother when T.J. was an infant. An investigation, documented in two affidavits of diligent search, did not disclose her father’s whereabouts.

After T.J.’s mother passed away, her aunt voluntarily provided her a place to stay. The aunt does not have any judicially-conferred status as a custodian or guardian of T.J.

The Hearing and Order

At the non-evidentiary hearing on the amended petition, the trial court observed that T.J. had been cared for by her aunt after her mother’s death. The trial court determined that the appropriate relief would be a family court petition by the aunt to become TJ.’s legal custodian, and it denied the amended dependency petition. The trial court also denied the amended petition on the ground that T.J.’s father had not been served, but did not address the two affidavits of diligent search for him. This appeal followed.

Analysis — Dependency

Section 39.01, Florida Statutes (2010), provides the following definitions (inapplicable excerpts omitted) that apply to the issue before us:

(1) “Abandoned” or “abandonment” means a situation in which the parent or legal custodian of a child or, in the absence of a'parent or legal custodian, the caregiver, while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child. For purposes of this subsection, “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities.
(10) “Caregiver” means the parent, legal custodian, permanent guardian, adult household member, or other person responsible for a child’s welfare as defined in subsection (47).
(15) “Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
(a) To have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians; [or]
(e) To have no parent or legal custodians capable of providing supervision and care; or
(24) “Diligent search” means the efforts of a social service agency to locate a parent or prospective parent whose identity or location is unknown, initiated as soon as the social service agency is made aware of the .existence, of such parent, with the search progress reported at each court hearing until the parent is either identified and located or the court excuses further search. ,
(35) “Legal custody” means a legal status created by a court which vests in a custodian of the person or guardian, whether an agency or an individual, the right to have physical custody of the child and the right and duty to protect, nurture, guide, and discipline the child and to provide him or her with food, shelter, education, and ordinary medical, dental, psychiatric, and psychological care.
(47) “Other person responsible for a child’s welfare” includes the child’s legal guardian or foster parent; an employee of any school, public or private child day care center, residential home, institution, facility, or agency; a law enforcement officer employed in any facility, service, or program for children that is operated or contracted by the Department of Juvenile Justice; or any other person legally responsible for the child’s welfare in a residential setting; and also includes an adult sitter or relative entrusted with the child’s care.

In F.L.M., the Fourth District addressed a similar dependency question and several of these definitions. The child arrived in the United States as an orphan from Guatemala. He had no legal custodian but did have temporary housing in Florida “on a voluntary basis,” such that the host family was “under no legal compulsion” to care for him. F.L.M., 912 So.2d at 1266. Although the trial court ultimately declined to find the child dependent, the Fourth District reversed, finding that from the record “it is indisputable that [F.L.M.] qualified as dependent, because he was a child living within our state borders without any parent or legal custodian anywhere. That presented a clear statutory basis for a finding of dependency.” Id. at 1269-70.

On the basis of that case, cited by the appellants in their memorandum of law and furnished to the trial court, the court should not have summarily dismissed the amended petition. See Dep’t of Children & Families v. K.H., 937 So.2d 807 (Fla. 5th DCA 2006). The legal basis for an adjudication of dependency in a similar case is also detailed in L.T. (though decided after the hearing and dismissal order). In L.T., K.S.L. was an orphan with no legal custodian, but he was released to L.T. (his uncle) as a caregiver “when his boat capsized off the coast of Florida.” L.T., 48 So.3d at 929. There, as here, the petitioner was not requesting any services from the Department, but sought an adjudication of dependency to allow K.S.L. “to petition as a special immigrant juvenile.” Id. The trial court dismissed L.T.’s dependency petition and instead treated it as a petition for legal custody, because “[t]he child’s uncle, the Petitioner, has been his caregiver for the past nine months and will continue to do so.” Id. The Fifth District concluded that, at the time of the dependency hearing, “K.S.L. was an orphan with no legal custodian and, therefore, he was dependent.” Id. at 930.

In the case at hand, T.J.’s aunt is not a “parent or legal custodian capable of providing supervision and care” under section 39.01(15)(e). Her father has been absent from her life for over ten years and has not been located after diligent search. Under the analysis of F.L.M. and L.T., each of which we find persuasive and applicable, and subject to any evidence that may be offered at the adjudicatory hearing on remand, T.J. has made a prima facie case that she is dependent.

The practical implications of an adjudication of dependency in this case warrant mention. Based at least on the verified allegations in the amended petition, T.J. should be eligible for placement with her aunt as a “fit and willing relative,” section 89.6231, Florida Statutes (2010), and no services have been requested of the Department. The adjudication will permit T.J. to seek federal immigration status as a special immigrant juvenile, and if successful she may be able to work and thereby afford higher education. A summary denial, on the other hand, might incent TJ.’s aunt to truly “abandon” T.J. at a police station or Department office in a misguided effort to obtain a dependency ruling. A summary denial based solely on the aunt’s voluntary assistance would penalize T.J., a young woman left in Florida through no fault or action of her own. The aunt’s assistance has spared the Department and the State of Florida the expense of caring for a child with no place to go and no parent or legal custodian available to provide care.

The concurring opinion regarding the dependency issue characterizes T.J.’s efforts as a “ ‘back door’ route to naturalization.” This label is unfair. Her petition is a “legal basis for regularizing the child’s immigration status,” as accurately observed by two other Florida District Courts of Appeal. F.L.M., 912 So.2d at 1270; L.T., 48 So.3d at 931. In F.L.M., the district - court first recounted the Department of Children and Families’ public policy argument that “undocumented aliens, usually in their late teens” might use this procedure, and that “such is not a proper use of Florida’s laws, courts, and resources devoted to helping truly-dependent, truly-needy children.” 912 So.2d at 1269. The district court expressly rejected this argument, holding:

This argument is unavailing, because if a child qualifies for a declaration of dependency under our statutes, the child’s motivation to obtain legal residency status from the United States Attorney General is irrelevant. If federal law grants a right to alien children to regularize their immigration status by first obtaining a state court adjudication of dependency, then there is no basis for failing to declare a child dependent so long as he or she meets the statutory criteria for dependency.

Id. Five years later, L.T. reached the same result, concluding that “the denial of the declaration of dependency had the effect of continuing to deprive the child of a legal basis for regularizing the child’s immigration status.” 48 So.3d at 931.

Analysis — Diligent Search

The trial court’s order addressed ah alternative ground for denial of T.J.’s petition:

The father of the child has not been served with the dependent petition. Efforts to find him were documented in an Affidavit of Diligent Search and Inquiry. All efforts to locate the father were made in the United States although the petition states that he might have been deported to Haiti.

As noted, however, T.J. had also filed a second affidavit of diligent search attesting to an unsuccessful inquiry made through the Haitian Consulate General in an effort to find her father in Haiti because of one suggestion that her father might have been deported to that country at some unspecified time. The two affidavits also documented diligent, but unsuccessful, inquiries made of and by T.J.’s aunt and all appropriate state and federal agencies in Florida.

On this issue, I respectfully dissent from my colleagues’ determination (in a separate opinion) that T.J.’s affidavits of diligent search were insufficient, such that additional searches must be undertaken by the Department or others on remand. In my view, the “diligent search” requirement has been met on the face of the existing record.

Section 39.502(10), Florida Statutes (2010), provides that “the failure to serve a party or give notice to a participant shall not affect the validity of an order of adjudication or disposition if the court finds that the petitioner has completed a diligent search for that party.” The statutory definition of “diligent search,” section 39.01(24) (set forth in full above), contemplates the “efforts of a social service agency to locate a parent or prospective parent whose identity or location is unknown.” In the present case, the Department has not made any such efforts or expressed any concern that TJ.’s affidavits are insufficient, essentially waiving such objections, based on an admirable decision not to interfere with an adjudication which would benefit an unfortunate child without expense to the Department.

Nor are the affidavits of diligent search insufficient under section 39.503, Florida Statutes (2010), as determined by my colleagues. That statute provides:

Identity or location of parent unknown; special procedures
(1) If the identity or location of a parent is unknown and a petition for dependency or shelter is filed, the court shall conduct the following inquiry of the parent or legal custodian who is available, or, if no parent or legal custodian is available, of any relative or custodian of the child who is present at the hearing and likely to have the information:
(a) Whether the mother of the child was married at the probable time of conception of the child or at the time of birth of the child.
(b) Whether the mother was cohabiting with a male at the probable time of conception of the child.
(c) Whether the mother has received payments or promises of support with respect to the child or because of her pregnancy from a man who claims to be the father.
(d) Whether the mother has named any man as the father on the birth certificate of the child or in connection with applying for or receiving public assistance.
(e) Whether any man has acknowledged or claimed paternity of the child in a jurisdiction in which the mother resided at the time of or since conception of the child, or in which the child has resided or resides.
(2) The information required in subsection (1) may be supplied to the court or the department in the form of a sworn affidavit by a person having personal knowledge of the facts.
(3) If the inquiry under subsection (1) identifies any person as a parent or prospective parent, the court shall require notice of the hearing to be provided to that person.
(4) If the inquiry under subsection (1) fails to identify any person as a parent or prospective parent, the court shall so find and may proceed without further notice.
(5) If the inquiry under subsection (1) identifies a parent or prospective parent, and that person’s location, is unknown, the court shall direct the petitioner to conduct a diligent search for that person before scheduling a disposition hearing regarding the dependency of the child unless the court finds that the best interest of the child requires proceeding without notice to the person whose location is unknown.
(6) The diligent search required by subsection (5) must include, at a minimum, inquiries of all relatives of the parent or prospective parent made known to the petitioner, inquiries of all offices of program areas of the department likely to have information about the parent or prospective parent, inquiries of other state and federal agencies likely to have information about the parent or prospective parent, inquiries of appropriate utility and postal providers, a thorough search of at least one electronic database specifically designed for locating persons, and inquiries of appropriate law enforcement agencies. Pursuant to s. 453 of the- Social Security Act, 42 U.S.C. s. 653(c)(4), the department, as the state agency administering Titles IV-B and IV-E of the act, shall be provided access to the federal and state parent locator service for diligent search activities.
(7) Any agency contacted by a petitioner with a request for information pursuant to subsection (6) shall release the requested information to the petitioner without the necessity of a subpoena or court order.
(8) If the inquiry and diligent search identifies a prospective parent, that person must be given the opportunity to become a party to the proceedings by completing a sworn affidavit of parenthood and filing it with the court or the department. A prospective parent who files a sworn affidavit of parenthood while the child is a dependent child but no later than at the time of or prior to the adjudicatory hearing in any termination of parental rights proceeding for the child shall be considered a parent for all purposes under this section unless the other parent contests the determination of parenthood. If the known parent contests the recognition of the prospective parent as a parent, the prospective parent shall not be recognized as a parent-until proceedings under chapter 742 have been concluded. However, the prospective parent shall continue to receive notice of hearings as a participant pending results of the chapter 742 proceedings.

As the record here discloses, no parent or legal custodian is available, and no relative or custodian was present at the hearing. Subsection (1) was inapplicable, and the affidavits of diligent search included all known information in the form of an affidavit as permitted by subsection (2). Regarding subsection (8), notice to T.J.’s father could not be provided for the reasons previously detailed: he has not been seen or heard from since T.J. was a small child. Subsection (4) is inapplicable, and subsection (5) grants the trial court the authority to “direct the petitioner to conduct a diligent search before the disposition hearing,” or to proceed “without notice to the person whose location is unknown” if that is in the best interest of the child. My colleagues have not referred to this portion of the statute, but have instead determined (without consideration of the “best interest” requirement expressed in section 39.503(5)) that T.J. must meet additional search requirements in section (6). These requirements were not mentioned by the trial court in the order of denial, and the Department and Guardian Ad Litem program did not raise them below or here. On this record, it is quite clear to me that T.J.’s search efforts were diligent and extensive, and that none of the parties — only my colleagues — doubt that proceeding without additional attempts at notice are in the best interest of T.J.

I therefore respectfully dissent from my colleagues’ conclusions on this separate issue.

Conclusion

We reverse the order denying the amended petition and remand this case to the trial court for further proceedings consistent with this opinion and the opinion which follows. As regards T.J.’s entitlement to an adjudication of dependency, the panel agrees upon reversal. As regards the sufficiency of the affidavits for diligent search, my colleagues have determined that further action is required. upon remand, while I respectfully dissent from that holding and would find the existing affidavits sufficient based on an uncontro-verted record that the requested adjudication of dependency is in T.J.’s best interest.

Reversed and remanded for further proceedings.

WELLS, Judge,

(concurring in part and dissenting in part).

While I concur in the decision to reverse the summary denial of the instant dependency petition for further proceedings below, I cannot agree with the conclusion that because T.J. has conducted a diligent search for her father and failed to locate him that we may presume that he is unable to care for her thereby mandating an adjudication of dependency.

This appeal stems from a dependency petition filed by the Immigrant Children’s Justice Clinic at Florida International University College of Law seeking to have seventeen year old T.J. declared dependent for the express purpose of permitting her to seek special immigration juvenile status. See § 39.501(1), Fla. Stat. (2010) (“All proceedings seeking an adjudication that a child is dependent shall be initiated by the filing of a petition by an attorney for the department [of Children and Families], or any other person who has knowledge of the facts alleged.”). As the Immigration Clinic candidly admitted at oral argument, T.J. has been cared for and fully supported by her aunt since her mother died in 2004, and will continue to be so in the future; thus what T.J. is seeking here is to be declared dependent to secure a “back door” route to naturalization. While I do not believe that Chapter 39 was ever intended to secure a pathway to citizenship for foreign minors, I must agree that the manner in which that Chapter currently is written may be interpreted to provide an avenue for such use. See § 39.001(1), Fla. Stat. (2010) (stating generally the purpose of Chapter 39 as being to provide for the care, safety and protection of children).

Specifically, section 39.01(15), as pertinent here, defines a dependent child as a child who has been abused, abandoned, or neglected or who has no parent or legal guardian capable of caring for her or him: (15) “Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:

(a) To have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians;
(e) To have no parent or legal custodians capable of providing supervision and care....

§ 39.01(15), Fla. Stat. (2010).

T.J. focuses primarily on subsection (15)(e) to support her dependency claim. This is so because she does not fall within the definition of an abandoned child. Under Chapter 39 an abandoned child is one whose parent, legal custodian, or “caregiver, while being able, makes no provision for the child’s support_” § 39.01(1), Fla. Stat. (2010) (emphasis added); § 39.01(10), Fla. Stat. (2010) (defining the term caregiver as “the parent, legal custodian, permanent guardian, adult household member, or other person responsible for a child’s welfare as defined in subsection (47)) (emphasis added); § 39.01(47), Fla. Stat. (2010) (including in the definition of “[ojther person responsible for a child’s welfare,” any “adult sitter or relative entrusted with a child’s care”). ' Since it is conceded here that T.J.’s aunt has provided for T.J.’s support since 2004 and intends to continue to do so, T.J. cannot be deemed dependent as an abandoned child.

The question to be resolved is, therefore, whether T.J. has no parent or legal custodian “capable of providing supervision or care.” § 39.01(15)(e), Fla. Stat. (2010). As to whether T.J. has a legal custodian, the record is clear: she has none. See § 39.01(35), Fla. Stat. (2010) (defining the term legal custody as “a legal status created by a court”). As to whether T.J. has a parent, the record is equally clear: while T.J.’s mother died in 2004, her father is alive and living somewhere. Thus on remand, it must be determined whether TJ.’s father is “capable” of providing supervision and care to her. Anything less contravenes the express language of section 39.01(15)(e) and opens wide the door to parents wishing to secure either a back door immigration route into the United States or funds and services from the State of Florida by simply leaving an otherwise fully supported and properly cared for child with a close relative so that relative or any other kindly soul or organization may obtain a dependency adjudication.

Judgé Salter concludes that T.J. need not adduce any testimony regarding her father’s ability to care for her because, notwithstanding the trial court’s express finding to the contrary, T.J. has conducted a-diligent search and because she has been unable to locate him, need not prove anything with respect to him. As the record before us confirms, no diligent search under Chapter 39 has taken place.

Section 39.502 of the Florida Statutes clearly states that until a parent’s rights are terminated, that parent must be notified of all proceedings involving a child:

(1) Unless parental rights, have been terminated, all parents must be noti fied of all proceedings or hearings involving a child....

§ 39.502(1), Fla. Stat. (2010) (emphasis added).

Section 39.503 provides that where, as here, a parent’s whereabouts are currently unknown, the court “shall direct the petitioner to conduct a diligent search for that person before scheduling a disposition hearing regarding the dependency of the child unless the court finds that the best interest of the child requires proceeding without notice.” § 39.503(5), Fla. Stat. (2010). While by definition a diligent search is one conducted by the Department of Children and Family Services, a licensed child-caring agency, or a licensed child-placing agency, under section 39.503(5), it appears that the court below could direct a non-department petitioner to conduct a search. Id.

Although the court below never directed T.J. to conduct a diligent search, and the Department never conducted one, two “diligent search” affidavits were filed in this case by attorneys at Florida International University’s College of Law, Immigrant Children’s Justice Clinic. Neither of these affidavits meets the minimum legal requirements set forth in Chapter 39 and are not, as the court below recognized, legally sufficient.

More specifically, section 39.503(6) sets forth the minimum requirements necessary to constitute a diligent search. They are (1) inquiries of all relatives of the missing parent made known to the petitioner; (2) inquiries of all program offices of the department likely to have information about the missing parent; (3) inquires of state and federal agencies likely to have information about the missing parent; (4) inquires of utility companies and postal providers; (5) a thorough search of at least one electronic database specifically designed for locating persons; and, (6) inquiries of appropriate law enforcement agencies:

The diligent search required by subsection (5) must include, at a minimum, inquiries of all relatives of the parent ... made known to the petitioner, inquiries of all offices of program areas of the department likely to have information about the parent ..., inquiries of other state and federal agencies likely to have information about the parent ...., inquires of appropriate utility and postal providers, a thorough search of at least one electronic database specifically designed for locating persons, and inquires of appropriate law enforcement agencies....

§ 39.503(6), Fla. Stat. (2010) (emphasis added).

The affidavits filed in this case do not satisfy these requirements in many respects. For example, as for inquiries of all relatives of the parent made known to the petitioner, the affidavit at issue here states only that “[a] representative from the [Florida International University College of Law] Clinical Program has spoken with the Child’s aunt, [who has indicated] that she does not have an address for the father, does not know his location and she was unable to acquire any information that could lead to locating [the father].” This hearsay statement that one of the mother’s relatives does not have the father’s address or know his location is simply inadequate. The question should, as the court below recognized, have been whether this child or any other known relative of the father, knew the father’s whereabouts or the names and locations of any other relatives who might have such information. Indeed, the dependency petition expressly states that T.J. has an older sibling with whom she shares parentage. Despite this admission, the affidavit nowhere states that any inquiry was made of this sibling as to the whereabouts of their father. In this respect the affidavit is woefully inadequate.

The affidavit also does not state which department program offices the petitioner contacted to inquire about T.J.’s father and it fails to state which, if any, utility providers it has contacted, all as required by section 39.503. Most importantly, however, it fails to state what efforts were made to discover his immigration status to ascertain whether he had entered the country legally and whether he had been deported, inquires that might well lead to locating him, i.e. no inquiry was made of the “federal agencies likely to have information [about the father].” See In re T.R.F., 741 So.2d 1184, 1186 (Fla. 2d DCA 1999) (“We conclude that neither [of petitioner’s] affidavits] complied with the requirements of section 39.4051(6) [now 39.503]. The affi-ant did not check the offices of the department likely to have information about the father, other state and federal agencies likely to have information about the father, utility and postal providers, or appropriate law enforcement agencies.”).

In short, the affidavits filed by the petitioner in this case failed as a matter of law to satisfy the minimum requirements of section 39.503. This court is not, therefore, in a position to reverse the trial court’s determination that a diligent search has not been conducted in order to skip directly to the conclusion that because TJ.’s father has not been found T.J. is absolved of the obligation to prove that she has no parent capable of caring for her.

Thus, while the summary denial should be reversed, T.J. is not entitled to an adjudication of dependency until such time as a diligent search is conducted in accordance with the express provisions of Chapter 39 and if her father is located, until after T.J. establishes that she is dependent as that term is defined by Chapter 39.

EMAS, J.,

specially concurring.

I join in that portion of Judge Salter’s opinion which reverses the trial court’s order summarily denying the amended petition and remanding this cause to the trial court for further proceedings.

I join in that portion of Judge Wells’ opinion which affirms the trial court’s determination that the affidavits of diligent search did not satisfy the requirements of Florida Statutes, section 39.503.

      .The procedural posture of this appeal is unusual because of the "private petition” filed by the Immigrant Children’s Justice Clinic. The Department of Children and Families did not brief or argue either side of the issue below or on appeal, and the Florida Guardian Ad Litem Program, Eleventh Judicial Circuit, was a nonparty below and here. We appreciate the public interest work done by the Clinic and other law school clinics in South Florida, and we acknowledge the professional oral argument provided by the certified legal intern (law student) who presented T.J.'s case.

      . F.L.M. v. Department of Children & Families, 912 So.2d 1264 (Fla. 4th DCA 2005) (hereafter, “F.L.M.”), and L.T. v. Department of Children & Families, 48 So.3d 928 (Fla. 5th DCA 2010) (hereafter, "L.T."). L.T. was issued November 23, 2010, several months after the trial court’s hearing and decision on the amended petition.

      . The trial court order refers to a single affidavit, but there were two (July 9, 2009, and March 23, 2010), as detailed below.

      . T.J. may also qualify as an "abandoned” child under sections 39.01(1) and 39.01(15)(a). We do not reach that question because of our determination that section 39.01(15)(e) is applicable. Abandonment is a more fact-intensive question, turning in this case on the definition of "caregiver” (§ 39.01(10)) and whether T.J.’s aunt is an "adult household member, or other person responsible for a child's welfare as defined in [section 39.01(47)]," raising in turn the question of whether T.J.'s aunt was ever "entrusted with” or “responsible for” T.J.’s care. As detailed in F.L.M. and L.T., an analysis under section 39.015(e) is independently sufficient.

      .The significance of "no request for services” was not lost on our sister District Courts in F.L.M. and L.T., nor has it been lost on us. If dependent immigrant children deplete "State resources for other needy children,” F.L.M. at 1270, the Department and Legislature might alter the existing criteria for dependency.

      . Webster’s Third New International Dictionary, Unabridged Edition 158 (1st ed.1986), includes as its second meaning for "back door,” “an indirect, surreptitious, underhanded, or illegal means or way.”

      . The trial court actually had before it an amended petition that attempted to respond to the trial court's comments in dismissing the original petition without prejudice.

      . The practical effect of the additional fact-finding by the Department (as required by my colleagues’ opinion) is plain. In the trial court, counsel for the Department did not initiate a diligent search or question the adequacy of the affidavits of diligent search after the petition and amended petition were filed. In the appeal to this Court, the Department filed a motion (which was granted) to correct the style of the case to delete the designation of the Department as an appellee. The Court directed any party, including the Department and the Guardian Ad Litem Program, opposing T.J.’s position to file an answer brief by November 22, 2010, and no such brief was filed. "Diligent search,” apparently a non-issue to the Department, has become my colleagues' issue. If such a search takes three or four months for completion by the Department, T.J. will turn 18. The imposition of that requirement is thus likely to "deprive the child of a legal basis for regularizing the child's immigration status.” L.T., 48 So.3d at 931.

      . In pertinent part section 39.01(24) and (70) provide:
      (24) "Diligent search” means the efforts of a social service agency to locate a parent or prospective parent whose identity or location is unknown....

      (70) "Social service agency” means the department, a licensed child-caring agency, or a licensed child-placing agency.
      § 39.01(24), (70), Fla. Stat. (2010) (emphasis added).


author: MONACO, C.J.

text:
    Vincent E. DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1215.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2011.

      James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, C.J.

There was a negotiated plea agreement. There was a scoresheet. There was an oral pronouncement. There was a written judgment and sentence. There was confusion. We remand for clarification.

The appellant, Vincent Duncan, entered into a negotiated plea agreement in which he agreed to plead guilty to the crime of delivery of cocaine, a second degree felony, in exchange for a 27 month prison sentence. The appellant’s score sheet reflected that 26.25 months was the lowest permissible sentence available without a downward departure. The trial court accepted the plea agreement, but when it pronounced the appellant’s sentence the trial judge stated, according to the transcript, “I’m going to sentence you to twelve months in the department of corrections with credit for 148 days time served.” Although there was no objection from the State, and although no one commented on the obvious discrepancy between the apparent pronouncement and the plea agreement, the court minutes indicate that the trial court imposed a sentence of 27 months in state prison, with credit for time served. When rendered, the written judgment and sentence also indicated that the sentence imposed was 27 months in prison, with credit for 148 days time served.

Mr. Duncan argues on appeal that the oral pronouncement controls, and that as a result, the written sentence must be amended to reflect the sentence of 12 months pronounced at the plea and sentencing hearing. The State counters that the trial court must have made a mistake in its oral pronouncement, because the court was fully aware of the agreed upon sentence. It acknowledges that a trial court is not bound by a plea agreement, but states that if a trial court imposes a sentence lower than the negotiated plea, the State may withdraw the plea and proceed on the original charges. We conclude that clarification is necessary.

The Florida Supreme Court has held that a court’s oral pronouncement of a sentence controls over the written sentencing document. Williams v. State, 957 So.2d 600, 603 (Fla.2007) (citing Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003); Justice v. State, 674 So.2d 123, 126 (Fla.1996)). The “pronouncement” becomes final when the sentencing hearing ends. Comtois v. State, 891 So.2d 1130 (Fla. 5th DCA 2005). Even if the pronounced sentence is a mistake, a trial court cannot increase a legal and unambiguous sentence after the pronouncement becomes final. Id. A sentencing court may, however, clarify an ambiguous sentence, and we believe that is the circumstance here. Chapman v. State, 14 So.3d 273, 274 (Fla. 5th DCA 2009); Franklin v. State, 969 So.2d 399 (Fla. 4th DCA 2007), review denied, 983 So.2d 1154 (Fla.2008).

We suspect either that the transcript is incorrect or that the court simply misspoke in announcing the sentence. We note that defense counsel expressly stated at the plea hearing that the appellant was agreeing to the State’s offer of 27 months in prison, and the trial court asked the appellant if he read the plea form before he signed it. There is, therefore, a distinct possibility that the transcription from the digital recording might have been inaccurate.

We conclude that the best disposition of this case is, first, to remand to allow the trial court to clarify the sentence imposed. If the trial court finds after appropriate investigation that the transcript of the digital recording of the proceedings was incorrect, then a correction to the transcript should be created. If the transcription was accurate, then the sentence as orally pronounced must under Williams stand, and the written judgment and sentence must be corrected to conform to the oral pronouncement.

REVERSED and REMANDED for clarification.

SAWAYA and ORFINGER, JJ., concur.


text:
    D.F., Father of K.P., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D10-3721.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2011.
    Mark A. Skipper, Office of the Criminal Conflict and Civil Regional Counsel, Fifth District, Orlando, and Jeffrey Deen, Regional Counsel, Office of the Criminal Conflict and Civil Regional Counsel, Fifth District, Altamonte Springs, for Appellant.
    Jeffrey Dana Gillen, Department of Children and Family Services, West Palm Beach, for Appellee.

      Wendie Michelle Cooper, Tavares, for Guardian ad Litem Program.
   PER CURIAM.

The father appeals from an order terminating his parental rights. The Department of Children and Families concedes that the evidence presented was insufficient to support the trial court’s decision. Accordingly, we reverse the Final Judgment for Termination of Parental Rights, as to the father only, and remand for further proceedings.

REVERSED AND REMANDED.

SAWAYA, TORPY, and EVANDER, JJ., concur.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Conisha A. CADORE, Appellee.
    No. 2D10-1052.
    District Court of Appeal of Florida, Second District.
    April 27, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
   KELLY, Judge.

The State appeals from the trial court’s order that dismisses the information charging Conisha A. Cadore with trafficking in 400 grams to 150 kilograms of cocaine. The State argues that the question of whether Cadore had the ability to exercise dominion and control over the contraband was a jury question, not an issue properly decided on a motion filed under Florida Rule of Criminal Procedure 3.190(c)(4). We agree that, under the facts of this case, the trial court erred in granting the motion.

A defendant may move for dismissal under rule 3.190(c)(4) by alleging that “[tjhere are no material disputed facts and [that] the undisputed facts do not establish a prima facie case of guilt against the defendant.” It is the defendant’s burden to demonstrate that no prima facie case exists upon the undisputed facts set forth in detail in the motion. State v. Kalogeropolous, 758 So.2d 110, 111 (Fla.2000). In reviewing the undisputed facts, the State is entitled to the most favorable construction of the evidence with all inferences being resolved , against the defendant. State v. Dickerson, 811 So.2d 744, 746 (Fla. 2d DCA 2002). In meeting its burden of establishing a prima facie case, the State need not adduce evidence sufficient to sustain a conviction, State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3d DCA 2000), and may rely on circumstantial evidence, Kalogeropolous, 758 So.2d at 112.

In this case, Cadore moved to dismiss the information, arguing that the undisputed facts failed to show that she had dominion and control over the drugs in the residence. The undisputed facts are that a confidential informant purchased crack cocaine on two separate occasions from a person known as “Sunshine,” who was later identified as Conisha Cadore. The transactions took place in Cadore’s residence. Based on this information, law enforcement officers obtained a search warrant authorizing them to search Cadore’s residence for illegal drugs. Upon entering the residence, the officers encountered Ca-dore and codefendant Brent Starks in the bedroom. As a result of the search, the officers found approximately 75.4 grams of cocaine in a box on a kitchen shelf, approximately 98 grams of cocaine in a plastic bag inside an oven mitt hanging above the kitchen stove, approximately 132 grams of cocaine in a hat box on a shelf in. the bedroom closet, and other illegal drugs in a second box in the same closet. On a dresser in the bedroom, the officers found a statement from the Tampa Electric Company showing Cadore’s name. In a drawer of that dresser, the officers found $2495 in cash. In another dresser beside the bed, they found a loaded Glock .45 handgun, two pieces of mail showing the names of both defendants, and boxes of ammunition. A loaded Glock' .45 magazine was found on the couch in the living room. In addition, the officers found a digital scale containing cocaine residue at an unspecified location in the residence. Upon being told her Miranda rights, Cadore stated that she “hasn’t sold cocaine from the residence in approximately two weeks.” When an officer showed Starks a bag of cocaine that was found in the residence, Starks stated “that’s mine.”

In its demurrer the State did not dispute the facts Cadore set forth in the motion to dismiss. Instead, the State simply argued: “The issue of knowledge, as an element of constructive possession, is an ultimate question which a jury must decide on factual inferences; it is not subject to a motion to dismiss.” The trial court questioned whether the issue of dominion and control, the second element of constructive possession, could properly be decided on a rule 3.190(c)(4) motion and logically determined that it could. The court granted the motion to dismiss on the basis that the undisputed facts failed to show that Cadore had dominion and control over cocaine which was found in a jointly occupied residence.

Although the court wrestled with the procedural issue of whether constructive possession could be determined on a rule 3.190(c)(4) motion, we believe the issue more properly stated in this. case is whether constructive possession can be decided on a(c)(4) motion when the State’s case is comprised entirely of circumstantial evidence which requires a determination of factual issues. We conclude that it cannot. See Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999) (noting that whether a defendant had “dominion and control” over contraband is generally a fact issue for the jury); State v. St. Jean, 658 So.2d 1056, 1057 (Fla. 5th DCA 1995) (the issue of “knowledge” as an element of constructive possession is an ultimate question which a jury must decide on factual inferences).

Because the officers did not find Cadore in actual possession of the cocaine, the State was required to show that she had constructive possession of it. To establish a prima facie case based on constructive possession, the State had to establish that Cadore knew of the presence of the contraband and that she had dominion and control over it. See Brown v. State, 8 So.3d 464, 465 (Fla. 2d DCA 2009). The existence of these two elements can only be inferred if the premises where the contraband was found is in the accused’s exclusive possession. Robinson v. State, 975 So.2d 593, 595 (Fla. 2d DCA 2008). If possession of the premises is joint, the two elements must be shown by independent proof. Wagner v. State, 950 So.2d 511, 513 (Fla. 2d DCA 2007). Such proof may consist of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might infer knowledge of the presence of the contraband on the premises. State v. Holland, 975 So.2d 595, 598 (Fla. 2d DCA 2008).

“In considering a(c)(4) motion the trial judge may not try or determine factual issues nor consider the weight of conflicting evidence or the credibility of witnesses....” State v. Lewis, 463 So.2d 561, 563 (Fla. 2d DCA 1985). Thus, “[e]ven if the trial court doubts the sufficiency of the State’s evidence, it cannot grant a motion to dismiss criminal charges simply because it concludes that the case will not survive a motion for a judgment of acquittal.” State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999).

“Moreover, if the state’s evidence is all circumstantial, whether it excludes all reasonable hypotheses of innocence may only be decided at trial, after all of the evidence has been presented.” State v. Bonebright, 742 So.2d 290, 291 (Fla. 1st DCA 1998). “[A] defendant may not be convicted solely upon circumstantial evidence unless the evidence is inconsistent with the defendant’s reasonable hypothesis of innocence. This does not mean, however, that the evidence cannot establish a prima facie case sufficient to withstand a motion to dismiss.” State v. Burrell, 819 So.2d 181, 182 (Fla. 2d DCA 2002); see Ortiz, 766 So.2d at 1142.

. Based on Cadore’s statement that she had sold cocaine from the premises, evidence of recent cocaine sales to a confidential informant at Cadore’s residence, mail bearing Cadore’s name establishing a connection to the residence, cocaine found in the bedroom where Cadore stood at the time of the execution of the search warrant, cocaine found in a common area of the residence, and a scale containing cocaine residue, the facts, when viewed in a light most favorable to the State, are sufficient to survive a motion to dismiss, if not a motion for judgment of acquittal. See Dickerson, 811 So.2d at 746 (noting that, when faced with a motion to dismiss, the State must only establish the “barest prima facie case” (quoting State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984))).

Accordingly, we reverse with directions to reinstate the charges against Cadore.

ALTENBERND and MORRIS, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Florida Rule of Criminal Procedure 3.190(d) provides that the State “may” traverse a motion to dismiss; otherwise, factual matters asserted therein will be deemed admitted. State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999). "Thus, the State’s failure to file a traverse is not, in itself, fatal to a criminal charge, as the trial court must still consider the facts alleged in the motion to dismiss to determine whether a prima facie case has been established.” Id.; see State v. Jaramillo, 951 So.2d 97 (Fla. 2d DCA 2007).


author: DAVIS, Judge.

text:
    Dennis M. FUENTES, Appellant, v. Hae Young FUENTES, Appellee.
    Nos. 2D09-617, 2D09-965.
    District Court of Appeal of Florida, Second District.
    April 27, 2011.

      Theodore J. Rechel and Andrew A. Tapp of Rechel & Associates, P.A., Tampa, for Appellant.
    Kendra R. Davis of The Davis Law Group, P.A., Tampa, for Appellee.
   DAVIS, Judge.

In these consolidated appeals, Dennis M. Fuentes, the Husband, challenges (1) the trial court’s final judgment of dissolution of his twenty-nine-year marriage to Hae Young Fuentes, the Wife; (2) the trial court’s “Order From Case Management Conference”; and (3) the trial court’s “Order on Emergency Motion for Contempt.” We affirm the latter two orders without comment. With regard to the final judgment of dissolution, we reverse the equitable distribution portion of the final judgment and remand for reconsideration. We affirm all other aspects of the final judgment without comment.

In distributing the parties’ marital estate, the trial court appears to have counted certain funds twice. The Husband testified that when the parties lived in Italy they had a joint bank account there and that the account had roughly $40,000 in it. The Husband also testified that he twice transferred funds from that account to one in his name alone, leaving only $58 dollars in the joint account. One of the transfers was for. $29,862, and one was for $10,000. In calculating the marital estate on the equitable distribution worksheet, the court included as assets to be awarded to the Husband both $29,862, identified as the amount in the Husband’s account, and $40,000 as the amount the Husband “transferred] to personal account.” According to the Husband’s testimony, the $29,862 in his account was part of the $40,000 he transferred from the parties’ joint account. The equitable distribution worksheet reflects a bottom-line award to the Husband of $111,984, while the Wife is to receive $109,322.

Although the final judgment states that “[t]he Equitable Distribution table attached as Exhibit A reflecting the above specified distribution shall be ratified and incorporated herein,” the judgment itself makes no mention of the $40,000 transferred to the Husband’s account. The judgment therefore awards the Husband only $71,984 but awards the Wife the $109,322 contemplated by the equitable distribution worksheet without adjusting that figure to account for the $40,000 subtracted from the Husband’s worksheet distribution. If this unequal distribution is the unintentional result of the improperly calculated marital assets, we must reverse this portion of the final judgment and remand for recalculation. If it was an intentional distribution, we still must reverse because the trial court did not articulate any specific findings of fact to justify the unequal distribution. See Franklin v. Franklin, 988 So.2d 125, 126 (Fla. 2d DCA 2008) (“An appellate court must reverse an unequal distribution if the trial court fails to make a specific finding of fact that justifies the unequal distribution

Additionally, the Husband also testified that only $300 of the $40,000 he transferred to his own account remained because he had been forced to spend the rest on “living expenses ... the house payments, just all, you know, my expenses.” The Wife did not refute or challenge this testimony. As such, the Husband argues that only the $300 should be included in the marital estate. See Austin v. Austin, 12 So.3d 314, 316-17 (Fla. 2d DCA 2009) (“When a spouse depletes marital assets during the pendency of dissolution proceedings to pay for support, living expenses[,] and litigation expenses, it is error to include the assets in the equitable distribution scheme in the absence of misconduct.”). The trial court, however, failed to address this issue in the final judgment.

Finally, some of the trial court’s valuations of assets and debts are not supported by competent, substantial evidence. The Husband valued the debt on his car at $6000, the Wife valued it at $5200, but the court valued it at $3000 and apportioned it to the Husband. Likewise, although the Husband testified that he owed a $20,000 reimbursement payment to the government for housing expenses associated with his employment and the Wife offered no opinion on the value of this debt, the court valued it at $15,000 and assigned it to the Husband. The trial court made no findings as to why these debts were so valued.

Based on the errors on the face of the final judgment and the lack of findings, we must reverse the equitable distribution portion of the final judgment of dissolution and remand for recalculation. On remand, the trial court shall make all necessary findings to support its ultimate distribution. Furthermore, the court will address the Husband’s claim that certain assets should not be included in the distribution because they were depleted to pay for his living expenses. All other aspects of the final judgment are affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings.

KELLY and LaROSE, JJ., Concur.


text:
    Washington LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1945.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Washington Louis, Carrabelle, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Terry v. State, 808 So.2d 1249 (Fla.2002).

POLEN, GERBER and LEVINE, JJ., concur.


author: DAMOORGIAN, J.

text:
    Donald Lee MEADER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4952.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Donald Lee Meader, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Donald Meader appeals from an order denying his motion for transcripts, in which he requested copies of his plea and sentencing transcripts free of charge in order to prepare his motion for postconviction relief. We affirm the denial of the motion for transcripts. “‘Beyond the record provided for a direct appeal, [a prisoner] is not entitled to free transcripts to assist in the preparation of either a post-conviction motion or a petition for extraordinary relief.’” Vanover v. State, 946 So.2d 1152, 1152 (Fla. 4th DCA 2006) (quoting Golden v. State, 870 So.2d 167, 167 (Fla. 2d DCA 2004)).

Affirmed.

MAY and LEVINE, JJ., concur.


text:
    Marvin CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3721.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Marvin Carter, Hallandale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a) (summary affirmance).

GROSS, C.J., STEVENSON and MAY, JJ., concur.


text:
    Joel Phillip DAIGLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3444.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.

      Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hardee v. State, 534 So.2d 706 (Fla.1988); Jones v. State, 599 So.2d 741 (Fla. 3d DCA 1992); and Peoples v. State, 436 So.2d 972 (Fla. 2d DCA 1983).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


text:
    Lorenza SESSIONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1061.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2011.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010).

MAY, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Laurent DORIVERT, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1906.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2011.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Laurent Dorivert timely appeals a jury verdict convicting him of the first-degree murder of his wife, Marie Dorivert. He contends that the trial court erred in denying his motion for judgment of acquittal in this circumstantial evidence case. We have carefully considered the evidence presented at trial in light of the standard applicable in circumstantial evidence cases. See, e.g., McArthur v. State, 351 So.2d 972, 976 (Fla.1977). More specifically, we find that the eye witness testimony placing Do-rivert at the scene of the murder in the narrow time frame during which the murder occurred, along, with the blood and DNA evidence linking Dorivert to the murder scene were sufficient to rebut Do-rivert’s proffered hypothesis of innocence — that he was running errands and nowhere near the crime scene during or after the murder, so that someone else must have committed the crime.

AFFIRMED.

TORPY, LAWSON, and COHEN, JJ., concur.


author: LAWSON, J.

text:
    STATE of Florida, Appellant, v. A.D.C., a Child, Appellee.
    No. 5D10-1993.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellee.
   LAWSON, J.

The State appeals from an order denying its motion to continue a restitution hearing, and setting restitution at zero, when the State did not have a necessary witness present for the hearing. This is one of a number of eases pending before us from the same juvenile delinquency division in the Florida’s Ninth Judicial Circuit, decided adversely to the State by the same judge. In each case, the State did not have witnesses present at a duly noticed trial or evidentiary hearing, and the trial judge declined to continue the trial or hearing to allow the State another chance to produce its witnesses. Finding that the trial court abused its discretion by not granting the requested continuance in this case, we reverse. See State v. Humphreys, 867 So.2d 596 (Fla. 2d DCA 2004) (the denial of a motion to continue an evidentiary hearing is reviewed for abuse of discretion).

The State charged A.D.C. with battery and criminal mischief, alleging that A.D.C. struck his ex-girlfriend and damaged her car in a fit of rage following their breakup. A.D.C. pled no contest to both charges, and agreed to pay restitution in an amount to be proven at a later date. At the time of AD.C.’s plea, the restitution hearing was set for May 21, 2010, with no prior opportunity given to the State to confirm that its witnesses would be available on this date. Several days before the scheduled hearing, on May 18, 2010, the State filed a motion to reset the hearing on grounds that a necessary witness—a car repair or “body shop” expert who would testify as to the cost of repairing the damage caused by A.D.C.—was unavailable on May 21, 2010.

It is clear from this record that the State was diligent in its attempt to prepare for the hearing and secure the attendance of its necessary witnesses. It had not sought a prior continuance of this matter, and A.D.C. did not establish that he would suffer any prejudice as a result of resetting the hearing to a date and time when the State’s witnesses would be available. In fact, our review of the record indicates that the State established all “four factors” necessary to secure a continuance due to witness unavailability in this case. See Humphreys, 867 So.2d at 598 (“A party seeking a continuance due to witness unavailability must establish four factors: ‘(1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused material prejudice.’ ”) (quoting Geralds v. State, 674 So.2d 96, 99 (Fla.1996)).

Under these circumstances, it was an abuse of discretion to deny the State’s motion to continue the hearing. Id. Accordingly, we reverse the restitution order and remand with instructions that the trial court reset the restitution hearing.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MONACO, C.J., and JACOBUS, J., concur.


text:
    STATE of Florida, Appellant, v. S.M.M., a Child, Appellee.
    No. 5D10-2919.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellee.
   LAWSON, J.

The State appeals from an order dismissing its delinquency petition charging S.M.M. with one count of possession of cocaine. This is one of a number of cases pending before us from the same juvenile delinquency division in the Florida’s Ninth Judicial Circuit, decided adversely to the State by the same judge. In each case, the State did not have witnesses present at a duly noticed trial or evidentiary hearing, and the trial judge declined to continue the trial or hearing to allow the State another chance to produce its witnesses. We have reviewed each case applying an abuse of discretion standard. State v. L.J.T., 921 So.2d 746, 747 (Fla. 5th DCA 2006) (an order of dismissal is reviewed on appeal for abuse of discretion); State v. Humphreys, 867 So.2d 596 (Fla. 2d DCA 2004) (the denial of a motion to continue an evidentiary hearing is reviewed for abuse of discretion). Finding no abuse of discretion with respect to this case, we affirm dismissal of the charge against S.M.M.

The court initially placed S.M.M. into a pretrial diversion drug court program, which would have resulted in dismissal of the charge upon successful completion of the program. However, S.M.M. was discharged from drug court after several months of supervised participation, and the case was ultimately placed back on the trial court’s active docket upon motion by the State. The adjudicatory hearing (trial) was initially set for 8:00 a.m. on June 29, 2010. For reasons not apparent from the record before us, the trial was then rescheduled for 8:00 a.m. on July 1, 2010.

On July 1, 2010, the State moved to continue the trial on grounds that it was “not sufficiently prepared for trial.” The trial court granted the State’s motion to continue, and reset the trial for 8:00 a.m. on August 12, 2010. When the case was called at 10:45 a.m. on August 12, 2010, neither of the State’s two witnesses were present at the courthouse. The prosecutor stated that he had spoken with the deputy sheriff listed as one of the two state witnesses at 9:53 a.m. At that time, the deputy reported that he was on his way, but would need to first retrieve the evidence. There is no indication in the record as to exactly when the prosecutor expected either witness to be present in court. The trial judge noted for the record that the witnesses should have been present at 8:00 a.m., almost three hours earlier.

The judge had the halls called for both witnesses, with no response, and then asked the prosecutor how he wished to proceed. The prosecutor replied that he was ready for trial. Although questioning how the State could claim to be ready for trial when it had no witnesses present, the judge allowed the State to present its opening statement. After opening statements, with no witness present to place on the stand, the prosecutor then moved for a continuance to check on the status of the State’s witnesses. The trial court denied the motion, and dismissed the case.

In affirming the trial court’s decision, we of course recognize that “[d]is-missal is an extreme sanction that should be employed only when lesser sanctions would not achieve the desired result.” L.J.T., 921 So.2d at 747. If this had been an isolated incident, we might well reach a different result. But, it is apparent from this record — and from the other cases before us — that the court was dealing with a systemic problem involving a pattern of repeated failures by the State to produce witnesses for properly noticed trials or other evidentiary hearings. Considering this fact, along with the fact that the State had already secured at least one prior continuance, on the day of trial, when it was not prepared to proceed; the nature of the charge in this case; and, the fact that almost three hours after the trial was scheduled to start the State had no definitive estimate of when its witnesses might appear in court, and no reasonable explanation as to why they had not appeared on time, we find no abuse of discretion in the dismissal of this case.

AFFIRMED.

MONACO, C.J., and JACOBUS, J., concur.

      . S.M.M. alternatively argues that because the dismissal was entered after the start of trial, when jeopardy should have "attached,” this case should be viewed as "akin to” a judgment of acquittal entered in a criminal case— from which the State has no right of appeal. Given our affirmance of the dismissal applying an abuse of discretion standard, we need not address this issue.

      . The record contains a document dated July 24, 2009, notifying the parties that S.M.M. had been discharged from the drug court program. Inexplicably, no action was taken in the case for approximately ten months, when the State filed a request that the case be placed back on the court’s active docket in May 2010. Because S.M.M. had waived her speedy trial rights upon entry into the drug court program, this delay was not raised as an issue on appeal.


text:
    Michael T. PARTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3803.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2011.

      Michael Parton, Crawforville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael Parton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of Mr. Parton’s first, third, fourth and fifth claims without further elaboration. However, we conclude that Mr. Parton’s second claim, an alleged double jeopardy violation, merits further consideration.

After a jury trial, Mr. Parton was convicted of attempted sexual battery, false imprisonment and battery. The convictions were affirmed on appeal. See Parton v. State, 37 So.3d 871 (Fla. 5th DCA 2010). Mr. Parton then filed a rule 3.850 motion for postconviction relief. In his second claim, he contends that his convictions for both attempted sexual battery and simple battery violate double jeopardy principles because they are based on the same acts. Decisional law holds that a defendant can be convicted of both sexual battery and battery. See Herrera v. State, 879 So.2d 38 (Fla. 4th DCA 2004); Beltran v. State, 700 So.2d 132 (Fla. 4th DCA 1997). However, if the battery is based on the same acts that form the basis for the sexual battery, double jeopardy prohibits dual convictions. Herrera, 879 So.2d at 41.

Based on the limited record before us, it cannot be determined if the act that constituted the simple battery was the same act that constituted the attempted sexual battery. Accordingly, on remand, the trial court should either attach portions of the record that conclusively refute Mr. Par-ton’s claim or grant him an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    Brock R. SHADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4435.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2011.

      Brock R. Shade, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Brock Shade appeals an order summarily denying his postconviction claims filed pursuant to Florida Rule of Criminal Procedure 3.850. Shade’s postconviction motion asserted seven grounds of ineffective assistance of counsel. The trial court correctly denied grounds four, five, and six, and we affirm without elaboration. However, it erred in denying Shade’s remaining claims.

In exchange for a significantly reduced sentence, Shade resolved his seven cases involving multiple drug-related charges by pleading guilty in six cases and nolo con-tendere in the other. As part of his nolo plea, Shade specifically reserved the right to appeal the trial court’s Williams rule decision. On direct appeal, appellate counsel filed an Anders brief addressing both the merits of the decision and the fact it was not dispositive or preserved. This court issued a per curiam affirmance. Shade v. State, 7 So.3d 1117 (Fla. 5th DCA 2009).

Claims one, two and three of Shade’s rule 3.850 motion are interrelated and alleged that counsel was ineffective for misadvising him that the Williams ruling was dispositive and properly preserved for appeal. Shade asserts he would not have entered the plea agreement had he known the Williams ruling was not properly preserved. The trial court denied the claims because there was no record evidence indicating the Williams ruling was dispositive or that Shade’s plea was contingent upon it being dispositive. Rather, “counsel for Defendant merely took the steps to ensure that Defendant’s right to appeal the Court’s Williams rule issue was properly preserved.”

The problem with the trial court’s conclusion is that a Williams rule decision can only be preserved for appellate review if it is dispositive. Failure to preserve an issue for appeal may constitute ineffective assistance of counsel, so long as the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are met. See Merkison v. State, 1 So.3d 279, 281 (Fla. 1st DCA 2009). A claim that a defendant was induced to enter a plea upon counsel’s erroneous advice that an issue was preserved for appeal is facially sufficient. See Hawley v. State, 822 So.2d 552 (Fla. 1st DCA 2002). “[T]he voluntariness of a plea can be undercut if the decision to plead is influenced by erroneous advice regarding the defendant’s appellate rights.” Helms v. State, 573 So.2d 116, 116 (Fla. 2d DCA 1991).

In this case, Shade’s claim was facially sufficient because he alleged that he would not have entered the plea agreement had he known the Williams ruling was not properly preserved. The trial court’s attachments to its order do not conclusively refute this claim. Rather, they reflect that Shade entered the plea under the belief that he could appeal the Williams ruling, he hesitated before entering the plea, and he was assured at least six times that the Williams ruling was preserved for appeal. Shade’s understanding regarding the dis-positiveness is best resolved in an eviden-tiary hearing. Id.

We also note that this court’s prior “per curiam affirmance without opinion on direct appeal does not establish whether the specific issue was or was not preserved for appeal.” Tidwell v. State, 844 So.2d 701, 702-03 (Fla. 1st DCA 2003), citing Daniels v. State, 806 So.2d 563, 564 (Fla. 4th DCA 2002). “In such a case, a per curiam affirmance might just as well have been based on the conclusion that the issue was not preserved, as on the conclusion that the issue, though properly preserved, lacked merit.” Id. at 703.

Accordingly, we reverse and remand for an evidentiary hearing to determine the parties’ understanding regarding the dis-positiveness of the Williams ruling and whether Shade would have accepted the plea without this issue being preserved.

We also find the trial court erred in denying Shade’s seventh claim as con-clusory. When an initial rule 3.850 motion is determined to be insufficient, the trial court abuses its discretion when it fails to allow the defendant one opportunity to amend the motion. See Spera v. State, 971 So.2d 754 (Fla.2007). We therefore reverse the portion of the trial court’s order denying claim seven, and direct the trial court to strike the claim with leave to amend so long as Shade can do so in good faith.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, COHEN and JACOBUS, JJ., concur.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    W.T., Father of K.J.T. and C.J.T., Children, Appellant, v. K.F.Y., Mother, and M.R.Y., Stepfather, of K.J.T. and C.J.T., Children, Appellees.
    No. 5D10-4031.
    District Court of Appeal of Florida, Fifth District.
    May 3, 2011.
    Jeffrey Deen, Regional Counsel, Lori Loftis and Ryan Truskoski, Assistants Regional Counsel, Altamonte Springs, for Appellant.
    Robyn A. Hudson of Robyn A. Hudson, P.A., Tavares, for Appellees.
   PER CURIAM.

The trial court terminated W.T.’s parental rights and granted Appellees’ petition for stepparent adoption after a hearing. W.T. appeals the order terminating his parental rights because he is indigent and incarcerated and was unrepresented below. We agree that reversal is appropriate.

Despite receiving notice of the hearing and arranging to appear telephonically, the Department of Corrections inadvertently caused Appellant to miss the hearing, which proceeded in his absence. Florida Rule of Juvenile Procedure 8.525(d) provides that “all parties have the right to be present at all termination hearings.” In a similar context, this court has held that a default consent termination should not be entered when the parent’s failure to appear is due to forces beyond his control. See A.H. v. Dep’t. of Children and Families, 22 So.3d 801 (Fla. 5th DCA 2009). We believe the same result should apply in this case.

Further, there is neither a transcript, nor an adequate substitute, memorializing the proceedings before the trial court as required by Florida Rule of Juvenile Procedure 8.255(g). See J.D.L. v. W.J.J., Jr., 54 So.3d 603 (Fla. 5th DCA 2011). Accordingly, we reverse the final judgment and remand to the trial court to conduct a new hearing with the Appellant present, if he elects to exercise that right. See Fla. R.App. P. 9.315(b).

REVERSED AND REMANDED WITH INSTRUCTIONS.

TORPY, LAWSON and COHEN, JJ., concur.

      . Counsel for Appellant further maintains that Appellant was indigent and had a right to appointed counsel at his termination hearing pursuant to Florida Rule of Juvenile Procedure 8.525(d). If the trial court determines Appellant to be indigent and entitled to counsel on remand, appointment of counsel should be ordered pursuant to the rule.