author: WARNER, J.

text:
    J.M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D08-3313.
    District Court of Appeal of Florida, Fourth District.
    March 4, 2009.

      Kenneth B. Williams, Coral Springs, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Christy Fisher, Assistant Attorney General, Fort Lauderdale, for ap-pellee.
    Wendie Michelle Cooper, Orlando, for Guardian ad Litem Program.
   WARNER, J.

A mother appeals a final judgment terminating her parental rights to her child. She raises two issues on appeal. First, she claims that the court erred in entering a consent to termination after she failed to appear at one hearing. Second, she maintains that the Department of Children and Families failed to present clear and convincing evidence of the statutory grounds for termination, nor did it prove that termination was in the manifest best interests of the child. Although the court should not have entered a consent, the court permitted the mother to pai’ticipate in the entire proceeding and specifically explained in its final judgment that it did not rely on the consent in making its determinations. As there was competent substantial evidence to support the court’s findings, we affirm.

The DCF became involved with the mother and father at the birth of their first child, a son, who tested positive for cocaine. C.A., the daughter who is the subject of these termination proceedings, was both born and originally declared dependent in 1998. Over the past ten years the parents have required the periodic intervention of DCF in the form of dependency adjudications because of drugs and domestic violence. After the last removal of the children from the parents’ care in July of 2007, DCF filed a petition to terminate the parents’ rights to both children.

During the required advisory hearing on the petition, the mother denied the allegations of the petition, and the court scheduled the adjudicatory hearing. The court expressly warned the mother that her failure to attend the adjudicatory hearing would constitute consent to the petition. The court did not conduct the adjudicatory hearing on the first ordered hearing date and thereafter continued it two additional times. The mother was present at each scheduled hearing date. During the first two hearings, the court admonished the mother to appear at the next scheduled hearing date or suffer a consent to the petition. However, at the last hearing the court continued the adjudicatory hearing but failed to advise the mother that she must personally appear at the reset date.

The court finally began the trial of the petition, and the mother was not present. She sent word that she was attending matters regarding the recent death of her father. Because the mother failed to appear at the commencement of the hearing, the court entered a consent to the petition. The testimony did not conclude on the first day, and the hearing actually took an additional five hearing dates to complete. The mother never moved to vacate the consent, but the court permitted the mother to participate fully in the proceedings. In its final order of termination, the court noted that while the consent was still valid, as the mother had never requested the court to vacate it, DCF had presented clear and convincing evidence of the grounds for termination and had sustained its burden of proof independent of the consent. Based upon a thorough review of the evidence, the court terminated the mother’s rights to the child.

The mother asserts that the court erred in holding that her absence at the commencement of the adjudicatory hearing constituted implied consent to the termination in light of the court’s failure to expressly warn her at the previous hearing of her required presence at the next scheduled hearing when the trial actually began. DCF concedes that the court did not admonish her to attend.

Section 39.801(3)(d), Florida Statutes, provides:

If a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.

We are quite certain that it was a mere oversight that the trial court failed to order the mother to appear on the hearing date at which the adjudicatory hearing actually commenced. Nevertheless, as the court did not order her to personally appear on that date, we conclude that the court should not have entered a consent to the petition.

This error, however, does not require a reversal. Despite the entry of the consent, the mother fully participated in the proceedings. Her attorney cross-examined all of the witnesses and called witnesses on the mother’s behalf. In the final judgment, the trial court noted the consent, but it did not rely on it in reaching its conclusions. In fact, it specifically noted that DCF met its burden of proof even without reliance on the consent. Because the court did not rely on the consent and provided the mother with the full opportunity to participate in the proceedings, thus protecting her due process rights, we affirm.

As to the mother’s claim that DCF failed to prove its case with clear and convincing evidence, we also affirm. The appellate court does not “conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute [its] judgment for that of the trier of fact.” In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995). Instead, the courts “will uphold the trial court’s finding ‘[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.’ ” Id. (quoting Kingstey v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993)). We have reviewed the record and conclude that there is competent substantial evidence to support the trial court’s judgment.

Affirmed.

POLEN and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PALMER, C.J.

license: Public Domain

text:
    Fran PRICE, Appellant, v. Kathleen L. ABATE, David W. Flanigan, Michael D. Flanigan, Patricia L. Flanigan, Patrick J. Flanigan, William J. Flanigan, Carole A. Latkovic, and Shannon Oddera, Appellees.
    No. 5D08-2109.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.

      Alan B. Taylor of Litchford & Christopher, Orlando, and G. Charles Wohlust of G. Charles Wohlust, P.L.C., Winter Park, for Appellant.
    Richard L. Pearse, Jr. of Richard L. Pearse, Jr., P.A., Clearwater, for Appel-lees.
   PALMER, C.J.

In this probate proceeding, Fran Price appeals the final summary judgment entered by the trial court in favor of the appellees on Price’s petition for the administration of a lost will. Finding no genuine dispute as to any material issue of fact, we affirm.

On April 21, 2005, Price filed a petition seeking the administration of the estate of Thomas Flanigan. The petition explained that Flanigan died on February 15, 2005, and that Price was the personal representative of Flanigan’s “undiscovered will”. The petition averred that “[t]he original of the will which is known to exist as of January 2005 has not been found and may not exist at this time”. The petition requested that the trial court admit Flani-gan’s estate to probate and that Price be appointed as the personal representative of the estate.

After the trial court issued letters of administration to Price, Flanigan’s eight intestate heirs filed a petition to determine the beneficiaries of Flanigan’s estate. In response, Price filed a petition to establish a lost will. Price’s petition alleged that Flanigan had executed a valid will but that it had not been found.

Upon review of cross-motions for summary judgment, the trial court issued a final order determining that Flanigan had died intestate. Of importance to this appeal, the trial court determined that there were no disputed issues of material fact and that, as a matter of law, Flanigan died intestate because the lost will which Price was seeking to enforce was invalid because it had not been executed with the formalities required by section 732.502 of the Florida Statutes (2005). This appeal timely followed.

An essential prerequisite to establishing and probating a lost will is proof that the lost document was executed in accordance with the formalities set forth in section 733.502 of the Florida Statutes. A testator must strictly comply with the requirements of the statute in order to create a valid will. Allen v. Dalk, 826 So.2d 245, 247 (Fla.2002).

Section 733.502 of the Florida Statutes provides that, among other things, it is essential to the validity of a will for the witnesses to sign in the testator’s and each other’s presence. Simpson v. Williamson, 611 So.2d 544, 546 (Fla. 5th DCA 1992). The proponent of a will bears the burden of establishing prima facie its formal execution and attestation. See § 733.107(1), Fla. Stat. (2005). An improperly attested will can hot be admitted to probate. Jordan v. Fehr, 902 So.2d 198, 201 (Fla. 1st DCA 2005).

In seeking summary judgment, Flani-gan’s heirs asserted that Price could not sustain her burden of proving that Flani-gan’s purported lost will had been properly attested to. To support their claim, the heirs cited to the deposition testimony of the only living witnesses to the execution of Flanigan’s purported lost will, bank employees Dalila Ramos and Donna Fazio.

Ramos testified that Flanigan asked her to notarize a hand-written piece of paper which stated “that he was leaving basically everything that he owned to Fran Price.” Ramos testified that she did not remember if Flanigan signed the paper in her presence or not. Ramos further testified that after she notarized the document she called over a teller named Donna Fazio to act as a witness. Critical to this appeal, she further testified:

Q. Now, when you signed it, was Donna Fazio present?
A. No.
Q. And Donna Fazio did not see you sign the document; is that correct?
A. That is correct.

Donna Fazio’s deposition testimony was consistent with the testimony submitted by Ramos. In that regard, Fazio testified that Ramos summoned her by using a phone intercom, and that Ramos asked her to witness a document:

Q. You say by the time you got there, everything was already signed?
A. Yes, sir.
Q. Now, did you see anybody sign?
A. No.
Q. Were you present when anybody signed?
A. No.

The trial court concluded that entry of summary judgment in favor of the heirs and against Price was warranted because the uncontradicted record evidence demonstrated that Ramos and Fazio did not sign in the presence of each other because Fazio was not in the presence of Ramos when Ramos signed the document. Price challenges this ruling, conceding that there are no cases in Florida which expressly define the term “in the presence of each other” for purposes of the statute but claiming that, given the physical proximity of the two witnesses, the determination of this issue involves genuine issues of material fact which should be determined by the trier of fact after hearing the actual testimony of the witnesses. We disagree.

The decision issued by our Supreme Court in State v. Werner, 609 So.2d 585 (Fla.1992), supports the trial court’s ruling. In that case, the Court was asked to define the word “presence” for purposes of the lewd and lascivious act statute, section 800.04(3) of the Florida Statutes, which provides that any person who knowingly commits any lewd or lascivious act “in the presence of’ any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree. The State argued that the plain and ordinary meaning of “presence” is “the part of space within one’s immediate vicinity.” Upon review, the Court rejected the State’s argument and concluded that, while the child need not be able to articulate or even comprehend what the offender is doing, the child must see or sense that a lewd or lascivious act is taking place for a violation to occur.

Application of this reasoning to the instant case supports the trial court’s conclusion that the mere fact that Ramos and Fazio were in the vicinity of one another at the time Ramos signed Flanigan’s will was insufficient to satisfy the statutory requirement that Ramos sign the will in Fazio’s presence. Accordingly, we affirm the trial court’s ruling.

AFFIRMED.

TORPY and EVANDER, JJ„ concur.


author: PER CURIAM.

text:
    M.B., a Child, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 5D08-598.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.
    James S. Purdy, Public Defender, and Michael Olshefski and Kathryn Rollison Radtke, Assistant Public Defenders, Day-tona Beach, for Appellant/Cross-Appellee.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee/Cross-Appellant.
   PER CURIAM.

M.B., a juvenile, appeals the trial court’s commitment of him to a Level 6 residential program despite the Department of Juvenile Justice’s recommendation that he be placed on probation. The State cross-appeals the trial court’s order declaring sections 985.433(7)(a) and (b), Florida Statutes, unconstitutional. This Court has jurisdiction. Fla. RApp. P. 9.140(b)(1)(A) and 9.140(c)(1)(E).

We are unable to address the first issue because M.B. failed to preserve the issue in accordance with Florida Rule of Juvenile Procedure 8.135. I.B. v. State, 816 So.2d 230, 231 (Fla. 5th DCA 2002). As for the cross-appeal, the trial court held sections 985.433(7)(a) and (b) unconstitutional based on the separation of powers doctrine. The trial court reached this conclusion based on the premise that the statute places sentencing discretion solely within the province of the Department of Juvenile Justice. We disagree and reverse. See § 985.433(7)(b), Fla. Stat. (2008) (stating court “may order placement at different restrictiveness level” than recommended by department where it provides reasons supported by preponderance of evidence).

AFFIRMED IN PART; REVERSED IN PART.

PALMER, C.J., TORPY and EVANDER, JJ., concur.

      . Despite its finding that the statute was unconstitutional, the court gave nine grounds for departure, the merits of which we do not address on preservation grounds.


text:
    Carl FARNAM, Appellant, v. U.S. SUGAR CORPORATION and Gallagher Bassett, Appellees.
    No. 1D08-3534.
    District Court of Appeal of Florida, First District.
    March 6, 2009.
    Gilbert R. Panzer, Jr., Boca Raton, and Bill McCabe, Longwood, for Appellant.
    Marissa M. Hoffman of Conroy, Sim-berg, Ganon, Krevans, Able, Lurvey, Morrow & Schefer, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

Claimant challenges the Judge of Compensation Claims’ (JCC) order on three grounds. Claimant argues the JCC erred in (1) ruling on Claimant’s new claim for repetitive trauma after determining it was not ripe for hearing; (2) denying a request for an independent medical examination (IME) on the repetitive trauma claim based on her improper rulings concerning the claim; and (3) rejecting the parties’ stipulation regarding compensability of Claimant’s low back condition and need for treatment.

Our review indicates the JCC did not err in rejecting the parties’ stipulation because competent evidence supports the JCC’s finding that the workplace accidents were no longer the major contributing cause of Claimant’s low back condition. Consequently, we affirm on that issue. However, we conclude the JCC erred as a matter of law by addressing the new repetitive trauma claim after acknowledging it was not ripe and the issue was not properly before her, and by relying on her findings related to this claim to deny Claimant’s requested IME. Accordingly, we reverse and remand as to these issues.

Section 440.192(9), Florida Statutes, allows only claims that have been listed in a petition for benefits and mediated to be adjudicated by a JCC. Here, the claim for compensability of the back condition, based on a repetitive trauma theory, was the subject of a petition for benefits, but had not gone through the mediation process. The JCC correctly found the claim was not ripe for adjudication, and the petition for benefits based upon repetitive trauma was not before her. Consequently, the JCC erred in addressing whether repetitive trauma caused, to any degree, the low back condition. See Reynolds v. Skagfield Corp., 887 So.2d 434, 435 (Fla. 1st DCA 2004) (holding “the JCC improperly determined the compensability of claimant’s back condition because the issue was not before the JCC”).

Because the JCC erred in addressing the repetitive trauma claim, she erred in denying the IME. Section 440.13(5), Florida Statutes, allows for an IME when there is a dispute concerning compensability. Here, the E/C created a dispute by denying that Claimant’s back condition was caused by repetitive trauma. The JCC denied Claimant’s motion for an IME due to a lack of dispute based upon her findings regarding the lack of a causal relationship between Claimant’s low back injury and repetitive trauma. Because the JCC erred as a matter of law by making those findings when the issue was not before her, there was no competent, substantial evidence to support her finding that there was no dispute regarding Claimant’s entitlement to an IME.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

WOLF, BENTON and BROWNING, JJ., concur.


author: EVANDER, J.

text:
    F.T., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3215.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

F.T. appeals from a disposition order committing him to a level 6 placement for one year after being found guilty of possession of less than 20 grams of cannabis. He contends that the trial court erred in rejecting the Department of Juvenile Justice’s (DJJ) recommendation of probation. We agree.

After the adjudicatory hearing, the trial court ordered a predisposition report (PDR). The PDR reflected that F.T. had never previously been found guilty of a criminal offense. The PDR further reflected that the DJJ officer preparing the PDR had requested F.T. to submit to a drug test to assist the officer in the preparation of her report. F.T. declined to give a urine sample for a drug screening, stating that “he did not have to prove himself to anyone.” The State does not dispute that at the time of the request, F.T. was under no legal obligation to submit to drug testing.

Based on F.T.’s failure to submit to the requested drug test, the trial judge rejected DJJ’s recommendation of probation, stating:

(Yjour attitude is inconsistent with probation. We put people on probation because we’re trying to work with them. We expect your cooperation while you are on probation. Refusing to submit to a drug test because you — -because you don’t think you have to prove yourself to anyone is inconsistent with the philosophy and the purpose of probation, and it is an indication to me that probation will not meet your needs.

Three weeks later, the trial court held a hearing to review the imposed sanction. At this hearing, the DJJ officer who prepared the PDR testified that initially F.T. “didn’t really understand the whole process, and he took everything lightly.... But now he realize[s] how serious it is.” She further testified that even if F.T. had tested positive for illegal drugs, DJJ would have recommended probation. F.T. then advised the trial judge that he would take a drug test “anytime the court orders.” The trial court declined to modify the disposition order and this appeal ensued.

The Florida Supreme Court has determined that a trial court may depart from the DJJ’s recommendation only if the trial court:

(1) Articulate[s] an understanding of the respective characteristics of the opposing restrictiveness levels (which are currently statutorily codified in section 985.03(44)(a)-(e), Florida Statutes (2007)) including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels (the DJJ possesses the expertise to provide this information); and
(2) Then logically and persuasively explain[s] why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

E.A.R. v. State, 4 So.3d 614, 633 (Fla.2009) (emphasis in original). A trial court may not deviate from DJJ’s recommendation simply because the judge disagrees with the recommendation. See J.S. v. State, 971 So.2d 992, 993 (Fla. 5th DCA 2008); G.L. v. State, 937 So.2d 801, 803 (Fla. 5th DCA 2006).

Here, the trial court’s decision seems primarily calculated to punish the child for refusing to submit to a voluntary drug test and was not based on the needs of the child. This court has previously rejected a departure from DJJ’s recommendation based on a child’s alleged disrespect to her mother, S.S.M. v. State, 814 So.2d 1234 (Fla. 5th DCA 2002) and a child’s alleged failure to show remorse for his actions, K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001). We similarly find that the reason articulated by the trial court in this case was insufficient to support a departure from DJJ’s recommendation. F.T. should not be punished for declining to submit to a drug test when he was under no legal obligation to do so.

REVERSED and REMANDED for Entry of A Disposition Order Consistent with DJJ’s Recommendation.

PALMER, C.J., and TORPY J., concur.


author: ORFINGER, J.

text:
    Alvin B. OLESH, Appellant, v. Patricia GREENBERG, Appellee.
    No. 5D08-2418.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.

      John R. Hamilton, of Foley & Lardner, LLP, Orlando, for Appellant.
    Mark P. Lang, of Mark Lang & Associates, Winter Park, for Appellees, Mark P. Lang, Esquire and Mark Lang and Associates.
    No Appearance for Appellee, Patricia Greenberg.
   ORFINGER, J.

Alvin B. Olesh appeals the trial court’s order denying his motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b). Olesh’s motion sought relief from an attorney’s fees award entered against him, and in favor of Patricia Greenberg and her former attorney, Mark P. Lang. We reverse.

On Greenberg’s motion, the trial court granted a summary final judgment against Olesh. On appeal, this Court reversed the summary judgment on the ground that the trial court should have allowed Olesh to offer new evidence in support of his motion for rehearing and amend his complaint following discharge of his counsel after the hearing on the motion for summary judgment. See Olesh v. Greenberg, 978 So.2d 238 (Fla. 5th DCA 2008). After the summary final judgment was entered, but while the appeal was pending, Greenberg filed a motion for attorney’s fees and costs against Olesh. The motion was based on the trial court’s sua sponte determination at the hearing on Greenberg’s motion for summary judgment that Olesh was liable for Greenberg’s attorney’s fees under section 57.105, Florida Statutes (2007), and Olesh’s failure to accept a proposal for settlement served on him pursuant to section 768.79, Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442. The trial court granted Greenberg’s motion and entered a final judgment against Olesh in the amount of $115,423, including fees and costs.

Olesh, who was unrepresented at the time, did not appeal that judgment. However, several days after this Court reversed the summary judgment against him (and less than one year after its entry), Olesh filed a rule 1.540(b) motion for relief from judgment, seeking to have the trial court set aside the fee award. Olesh argued that the fee judgment should be vacated because the underlying summary final judgment had been reversed. Following a hearing, the trial court denied the motion and this appeal followed.

Under the circumstances of this case, we agree that this matter should be reversed and remanded for the trial court to reconsider the attorney’s fee award in light of our prior decision. See Fla. R. Civ. P. 1.540(b). Our decision is without prejudice to Greenberg again seeking attorney’s fees if her proposal for settlement entitles her to attorney’s fees, or to fees under section 57.105 if adequately supported by findings of fact.

REVERSED and REMANDED.

GRIFFIN and COHEN, JJ., concur.


text:
    Meigo BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0837.
    District Court of Appeal of Florida, First District.
    March 16, 2009.
    Rehearing Denied May 14, 2009.
    Meigo Bailey, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, BENTON, and PADOVANO, JJ., concur.


text:
    Tyrone BURROUGHS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-154.
    District Court of Appeal of Florida, Third District.
    March 18, 2009.
    Rehearing Denied June 5, 2009.

      Tyrone Burroughs, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Tyrone Burroughs appeals the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse because the record does not refute conclusively Burroughs’ claim of ineffective assistance of counsel.

Burroughs was charged by information with one count of possession of cocaine with intent to sell. Following a jury trial, he was found guilty as charged and sentenced to thirteen years in state prison. Burroughs appealed to this Court and his judgment and sentence were affirmed. Burough v. State, 943 So.2d 1025 (Fla. 3d DCA 2006).

He then filed his Rule 3.850 claim. In his motion, Burroughs raises three ineffective assistance of trial counsel claims in support of his motion for postconviction relief. In the second claim, Burroughs alleges that trial counsel affirmatively mi-sadvised him to reject the State’s eighteen-month plea offer in favor of going to trial because the State would not be able to prove the elements of constructive possession or intent to sell drugs. Burroughs claims that counsel told him he had proof that the drugs were planted on Burroughs by law enforcement. Burroughs asserts that had he been notified properly by his attorneys prior to trial that they failed to obtain any records that would show conclusively that drugs had been planted on Burroughs, he would have accepted the eighteen-month plea offer.

The trial court denied Burroughs’ motion without an evidentiary hearing. Burroughs filed a motion for rehearing, which the trial court also denied.

With respect to his second ineffective assistance of trial counsel claim, Burroughs has raised facially sufficient claims for Rule 3.850 relief that the trial court, by summarily denying the motion, has failed to conclusively refute. Where the defendant claims that trial counsel misinformed the defendant when advising the defendant of the plea offer, persuading the defendant to reject the offer as a result of that misinformation, the defendant is entitled to an evidentiary hearing unless the record conclusively refutes the defendant’s allegations of misadvice. Yanes v. State, 960 So.2d 834, 836 (Fla. 3d DCA 2007); Reed v. State, 903 So.2d 344 (Fla. 1st DCA 2005); Perez v. State, 893 So.2d 629 (Fla. 3d DCA 2005). The postconviction record now before us does not conclusively refute Burrough’s second allegation of ineffective assistance of trial counsel.

Accordingly, we reverse the summary denial of Burroughs’ claim for ineffective assistance of counsel based on affirmative misadvice. On remand, if the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting Burroughs’ claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief). In all other respects, we affirm the trial court’s order.

Reversed and remanded.


author: CIKLIN, J.

text:
    T.G., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D08-4928.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Frank A. Kreidler, Lake Worth, for appellant.
    Daniel Lieberman and Patricia M. Pro-pheter, West Palm Beach, for appellee.
   CIKLIN, J.

The mother appeals the order denying her motion to withdraw her surrender and consent to the termination of her parental rights (“TPR”). We affirm as the record demonstrates that she voluntarily executed the surrender without fraud or duress.

The mother executed a surrender and consent to the termination of her parental rights in open court. Before accepting the surrender, the court engaged in a thorough colloquy with the mother. The mother confirmed that she understood that the surrender was permanent and that her parental rights to the child would be terminated forever. "When asked if anyone promised her anything or threatened her to get her to surrender her rights, she responded, “No, I was willing.” She believed that the surrender was in the child’s best interests.

When asked if she had any questions, the mother inquired if she would be “allowed to take [the child] and bring her back.” The court explained that the custodian, legal guardian, or adoptive parent would have ultimate control as to whether the mother would have any type of contact with the child. The court made clear there were no guarantees that anyone would allow her to have contact with the child and further that the court could not make that promise or make it a condition of the mother’s surrender. When the mother informed the court that she wanted the paternal grandmother to adopt the child, the court explained that there could be no such assurances and that she could not come back and change her mind if that did not occur.

On September 2, 2008, the court entered an order terminating the mother’s parental rights based on the required consent and the court’s determination that termination was in the manifest best interests of the child.

Subsequently, the mother filed a motion for relief from the TPR order alleging that her consent was the product of fraud and duress. The trial court denied the motion after an evidentiary hearing.

This court reviews the denial of a motion to set aside the surrender of parental rights for abuse of discretion. See R.B. v. Dept of Children & Families, 997 So.2d 1216 (Fla. 5th DCA 2008); W.T. v. Dept of Children & Families, 846 So.2d 1278, 1281 (Fla. 5th DCA 2003).

A parent who seeks to invalidate his or her purported consent to the termination of parental rights has the burden of proving fraud or duress by clear and convincing evidence. See K.C. v. Adoption Servs., Inc., 721 So.2d 811, 812 (Fla. 4th DCA 1998). In K.C., this court explained the test for proving duress in attempting to withdraw consent to TPR as follows:

Duress is:

A condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do and act or make a contract not of his own volition.

Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928). In order to prove duress,

“it must be shown (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side.” City of Miami v. Kory, 394 So.2d 494 (Fla. 3d DCA 1981).

Id.

The mother’s responses to the court’s questions and her unique inquiries to the court demonstrate the voluntariness of her consent and the absence of fraud and duress.

As to the other issue raised on appeal, we find it to be without merit.

Affirmed.

POLEN and HAZOURI, JJ., concur.


author: GRIFFIN, J.

text:
    Lexter CABAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-279.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2009.
    Ryan J. Sydejko, of Loren Rhoton, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Defendant, Lexter Caban [“Caban”], appeals the summary denial of his rule 3.850 motion for post-conviction relief. We find that one issue has merit and requires reversal.

On July 19, 1999, Caban was babysitting the two children, ages five and two, of his girlfriend while she was at work. A passerby found Caban outside the apartment, crying, and in search of help while cradling Jonathan, the two-year-old, and trying to rouse him. Caban said that he had put Jonathan in bed for a nap, and Jonathan had fallen off the bed. The passerby summoned her brother who performed CPR until paramedics arrived.

Jonathan was transported to Osceola Regional Hospital. Dr. Kenneth Byerly noted that Jonathan had bruising over the right eyelid and was experiencing intermittent seizures. The right pupil was dilated, indicating to Dr. Byerly a right side intracranial injury. A CAT scan was performed and surgery was immediately performed to evacuate a large subdural hema-toma. During the procedure, Jonathan went into cardiac arrest, and he was airlifted to the intensive care unit at Arnold Palmer Hospital. Three days later, Jonathan died.

Caban was charged with first-degree felony murder and aggravated child abuse. He was found guilty of those charges and was sentenced to natural life on the murder charge and a concurrent ten-year term of imprisonment on the aggravated child abuse conviction. His judgment and sentence were affirmed on appeal. See Caban v. State, 892 So.2d 1204 (Fla. 5th DCA 2005).

On direct appeal, the main contention was that there was insufficient circumstantial evidence of guilt and the trial court should have granted Caban’s motion for judgment of acquittal. Caban contended that the child had sustained the fatal injury when he fell off the bed. The trial was essentially a contest between experts. Dr. Robert Gold, a pediatric ophthalmologist testified that, consistent with “shaken baby syndrome,” the child had hemorrhages in all layers of the central retina of each eye, with no sign of external ocular trauma. The doctor opined that he would not expect to see retinal hemorrhage result from a fall from a thirty-two-inch high bed on to a carpeted floor. Dr. John Tilelli, an intensive care physician, testified that the CAT scan showed subdural blood, which usually occurs as a result of a direct impact. Moreover, the doctor testified that the child had both a translational or impact injury and also a rotational injury, and the child’s history of falling off the bed was not consistent with the injuries or their severity. His opinion was that the child suffered shaken baby syndrome, or whiplash impact syndrome. The doctor explained that when a child is violently shaken, the head rocks to and fro, causing the child’s brain to twist and turn. The twisting and turning causes injury to the brain and subsequent swelling. Dr. Tilelli testified that in twenty years, he had never seen a child with as severe an injury from a fall off a bed. He testified that it was likely that the injuries resulted from child abuse. Dr. Gary Pearl also testified for the State as an expert. He testified that the child’s head injuries were consistent with shaken baby syndrome. Dr. Merle Reyes also opined that this was a case of shaken baby syndrome.

The defense called two expert witnesses. Dr. Ljubisa Dragovic testified that the child died of blunt force trauma to the head and not from shaking. Dr. Jonathon Plunkett, who is perhaps the most widely known “shaken baby syndrome” skeptic, testified that short distance falls can cause serious injury and death and that the child’s death was caused by a subdural hematoma. He thought it unlikely that the injury was caused by a roll off the bed, and found it more likely that the child was standing or jumping when he fell off the bed.

Following the verdict, Caban filed a motion for new trial. The trial judge expressed concern over improper impeachment of the defense experts through the testimony of the State’s experts:

Because this was a battle of the experts, it does concern me that there was an improper impeachment of the defense experts in the case. There is clear case law that says one expert cannot comment on the qualifications of another expert, and without objection, the state questioned their experts about the qualification of the defense experts.

The judge further observed the prejudice suffered by Caban as a result of the improper impeachment:

And I think anybody who sat through the trial could see almost the physical reaction of the jury when one of the state’s experts described the defense experts as simply folks who travel around the country and testify for defendants to try and get them off in serious cases. It’s almost as if the jurors just shut down and didn’t care what else the defense experts had to say.

Because defense counsel did not object to this improper testimony, the trial judge ruled the impeachment issue would have to be raised in a post-conviction proceeding.

In this rule 3.850 proceeding, Caban argues that defense counsel was ineffective for failing to object and to preserve for appellate review improper impeachment of Dr. Plunkett by the State’s expert witnesses. Caban first complains about Dr. Pearl, who had given direct testimony for the State supporting the theory of shaken baby syndrome, particularly the characteristic of retinal hemorrhage. Defense counsel cross-examined him by asking about his efforts to keep up with all medical journals, and asked if he was familiar with four studies, including Dr. Plunkett’s paper, which posit that short distance falls can cause subdural hemorrhages. Dr. Pearl testified that he had read three of the studies, including Dr. Plunkett’s paper, but expressed the view that their opinion was “a very small minority.” On re-direct examination, the prosecutor elicited testimony from Dr. Pearl that an ad hoc committee of the National Association of Medical Examiners [“NAME”] held a position in direct opposition to the positions of Dr. Plunkett, and that an article compiled by Dr. Mary Chase, of the ad hoc committee, also rejected Dr. Plunkett’s views. The article was not entered into evidence, however. There was no defense objection.

Defense counsel also failed to object when State expert witnesses, Drs. Tilelli, Reyes, and Alexander, attacked the credibility of Dr. Plunkett. Dr. John Tilelli testified that Dr. Plunkett’s opinion was not supported or substantiated by his data and that Dr. Plunkett’s interpretation of his data is incorrect. Dr. Reyes was asked on cross-examination whether she ever testified for the defense, and Dr. Reyes answered in the negative, but then volunteered that “people who will testify for the defense are paid.” Dr. Reyes was also asked whether particular experts were used by defense attorneys all over the country, and Dr. Reyes answered in the affirmative. Dr. Reyes also agreed with the prosecutor that if you “[want] to make a lot of money” you put your name on a defense attorney list, and that when these defense experts become known in their fields, their income substantially increases.

The prosecutor also elicited testimony concerning Dr. Plunkett by asking Dr. Alexander: “And the majority of opinion you indicated in the pediatric community, are you also aware of the opinion of the other associations in the medical community as far as his [Plunkett’s] article and his testifying?” Dr. Alexander testified that “the National Association of Medical Examiners has a position paper on abusive head trauma, which basically is the same as the position paper the American Academy of Pediatrics has, and that’s really a huge variance with Dr. Plunkett.” Dr. Alexander further expressed the opinion that Dr. Plunkett’s conclusions were not generally accepted by the medical community, and that his data was “soft.” Dr. Alexander testified that Dr. Plunkett’s conclusions “are not accepted as even following from his own data.” Dr. Alexander further testified that he had heard of Dr. Plunkett because of his testifying for defense attorneys in cases of child abuse. Dr. Alexander also testified that in the last several years, the number of cases where he was called in had increased because the defense had retained experts like Dr. Plunk-ett.

Caban contends that an expert witness may not testify about the credibility of another witness and asserts that the attack upon Dr. Plunkett was exacerbated by inadmissible hearsay as to the opinions of NAME and Dr. Chase. He claims counsel was ineffective for failing to object.

Caban is correct that an expert may not comment on the credibility of other witnesses and that this was improper impeachment. See e.g., § 90.706, Fla. Stat. (2007); Sanchez v. Nerys, 954 So.2d 630 (Fla. 3d DCA), rev. denied, 969 So.2d 1014 (Fla.2007); Linn v. Fossum, 946 So.2d 1032 (Fla.2006); Morgan v. State, 639 So.2d 6, 12 (Fla.1994); Carver v. Orange County, 444 So.2d 452, 454 (Fla. 5th DCA 1983) (improper to impeach an expert witness by eliciting from another expert witness what he thinks of that expert).

A successor judge heard the post-conviction motion. He ruled that the prosecutor’s re-direct of Dr. Pearl was proper because the defense opened the door on cross-examination. The successor judge also denied relief on the basis that Dr. Tilelli and Dr. Alexander were merely commenting on the validity of the shaken baby syndrome theory and articles published in opposition to it, rather than the credibility of Dr. Plunkett personally, and that Dr. Reyes was appropriately responding to an attack on her own credibility based on never having testified for the defense. However, we conclude the State expert witnesses crossed the line in attacking Dr. Plunkett.

Questions that seek to elicit an opinion of the witness critical of the validity of the opinions by the opposing party’s expert are improper. See Carlton v. Bielling, 146 So.2d 915 (Fla. 1st DCA 1962). An expert may properly explain his opin ion on an issue in controversy by outlining the claimed deficiencies in the opposing expert’s methodology, so long as the expert does not attack the opposing expert’s ability, credibility, reputation or competence. See Network PubVs, Inc. v. Bjork-man, 756 So.2d 1028 (Fla. 5th DCA 2000). It is not improper to pose a question in a way to cause one expert to delineate the factors used in forming the opposing expert’s opinion and then do the same as to his own opinion, and compare the predicates upon which the two opinions are based. See Nowitzke v. State, 572 So.2d 1346 (Fla.1990); Mathis v. O’Reilly, 400 So.2d 795 (Fla. 5th DCA 1981). See also Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977); Ecker v. Nat’l Roofing, Inc., 201 So.2d 586 (Fla. 3d DCA 1967). Dr. Plunkett can be questioned as to possible bias in testifying for the defense, or asked about contrary opinions in authoritative literature, but the place to do so is on cross-examination of Dr. Plunkett, not through disparagement by other experts.

The failure to object appears to have been prejudicial in this circumstantial evidence case where expert opinion testimony was crucial to both sides, as the judge who tried this case observed. An evidentiary hearing should be held on this rule 3.850 issue. We find no merit to the other issues raised in the motion.

, AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and MONACO, JJ., concur.

      . After the defense rested, the State called one more expert witness, Dr. Randall Alexander, a professor of pediatrics, who testified that, in his opinion, lo a reasonable degree of medical certainty, the case was one of shaken baby syndrome.


author: WHATLEY, Judge.

text:
    Rodney Lee PHELPS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2010.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.
    Rodney Lee Phelps, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Rodney Lee Phelps appeals the order denying his motion for postconviction relief. The trial court properly denied Phelps’ motion on all grounds except ground one, in which he alleged he received an illegal sentence. Accordingly, we reverse Phelps’ sentence and remand to the trial court with directions that it treat ground one as a motion to correct illegal sentence and strike the habitual offender designation. See Rule v. State, 997 So.2d 1274 (Fla. 2d DCA 2009) (holding that concurrent and coterminous habitual offender and prison releasee reoffender sentences violate Prison Releasee Reoffen-der Act; directing the striking of the habitual offender designation).

Affirmed in part; reversed in part; and remanded.

NORTHCUTT, C.J., and LaROSE, J., concur.


author: LAGOA, J.

text:
    Faustino MARTINEZ, Appellant, v. Fulya KURT, Appellee.
    No. 3D08-2712.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.

      John G. Crabtree and George R. Baise, Jr., Key Biscayne, for appellant.
    Leinoff & Lemos and Andrew M. Lei-noff, South Miami; Greene Smith & Associates and Cynthia L. Greene, Miami, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

Faustino Martinez, former husband, appeals from an order modifying the education and visitation provisions of the April 11, 2008, marital settlement agreement (hereinafter the “Agreement”). Because the order impermissibly modifies the parties’ Agreement, we reverse the trial court’s order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Faustino Martinez, a citizen of Spain, and Fulya Kurt, a citizen of Turkey, were married in 1994. Since then, they have lived in Florida with their two children, who are citizens of the United States and Spain. During their dissolution of marriage proceeding, Mr. Martinez and Ms. Kurt entered into the Agreement concerning the custody and care of the children, which was incorporated into the April 16, 2008 final dissolution judgment without change.

Paragraph 12(a) of the Agreement states that Ms. Kurt has the right to relocate to Turkey with the children. At issue in this appeal is Paragraph 12(d) of the Agreement, which states as follows:

The parties have discussed the situation if Ms. Kurt wishes to relocate to Turkey. The parties have to agree to a full-time English speaking school in Turkey should the children attend private school in Turkey. Neither party’s consent will be unreasonably withheld as to the selection of the school. So the mechanism would be Ms. Kurt would provide the school information to Mr. Martinez, he would take a look at it, they would discuss it. Both parties will interview the schools together in Turkey. They will both meet with the appropriate personnel at the school. They will attempt to make a joint decision for the best interest of their children. If that is unsuccessful, then it goes to arbitration if they can’t reach an agreement with whoever we agree to as the arbitrator.

On August 18, Ms. Kurt informed Mr. Martinez that she was relocating with the children to Antalya, Turkey, the town where her family resides and owns a business. Ms. Kurt provided Mr. Martinez with the names of two Turkish private schools for the children to attend in that town. The two schools suggested by Ms. Kurt were not full-time English-speaking schools as contemplated by the Agreement. As such, Mr. Martinez did not approve of the schools. Pursuant to the trial court’s directive, Mr. Martinez provided Ms. Kurt with a list of three full-time English-speaking schools, which were located in or near Istanbul. Ms. Kurt, however, did not approve of these schools.

Following the impasse, Ms. Kurt then filed a motion for modification, requesting permission for the children to attend school in Antalya. In her motion, she asserted that Mr. Martinez’s choice of schools “are not practical” because of the commute and the traffic problems in Istanbul. To the contrary, she alleged that it was in the children’s best interest to attend a school in Antalya, which offers 10 hours of English per week, Spanish language instruction, and is located near Ms. Kurt’s family and friends. She further asserted that substantial changes have occurred that she was not aware of, i.e., the law has changed in Turkey and the number of English-speaking schools in Turkey have substantially diminished and are not conducive for the children. In response, Mr. Martinez argued the parties had specifically agreed that the children would attend a full-time English-speaking private school in Turkey.

At the hearing on the motion, the parties testified as to their Agreement that the children would attend a full-time English-speaking private school in Turkey, as well as the differences between the English speaking and Turkish education systems, and the benefits of each system. The trial court granted Ms. Kurt’s motion, finding that “[t]he agreed to full-time English-speaking school does not exist where [Ms. Kurt] chooses to reside and it is unreasonable to require her to live hundreds of miles from the rest of her family to be near such a school.” The trial court concluded that a private Turkish-speaking school, with ten hours per week of English, “is a fail' compromise.” The trial court also modified Mr. Martinez’s visitation schedule due to the change in holidays celebrated in the Turkish-speaking schools. In so ruling, the trial court made no findings that a substantial change in circumstances had occurred or that the modification was in the children’s best interests. This appeal ensued.

II. ANALYSIS

On appeal, Mr. Martinez argues that the trial court impermissibly modified the final judgment by permitting Ms. Kurt to enroll the children in a Turkish-speaking private school, absent a finding that a substantial, material change in circumstances had occurred and absent competent, substantial evidence to support such a change. We agree.

In ruling on a motion to modify aspects of a judgment concerning the custody and care of a child, the trial court must apply the “substantial change” test set forth in Wade v. Hirschman, 903 So.2d 928, 933-34 (Fla.2005). See Snowden v. Snowden, 985 So.2d 584, 587 (Fla. 5th DCA 2008) (noting that the Wade standard applies to any modification of a custody agreement “unless otherwise provided” in the final judgment); Segarra v. Segarra, 947 So.2d 543, 547 (Fla. 3d DCA 2006) (“Although in Cooper and Wade the courts adopted the substantial change test for modification of a rotating custody agreement, the same concerns apply to modification of any aspect of the final judgment.”). In order to satisfy the substantial change test,

the movant must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.

Wade at 931 n. 2 (quoting Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003)). See Paskiewicz v. Paskiewicz, 967 So.2d 277, 279-80 (Fla. 3d DCA 2007); Bazan v. Gambone, 924 So.2d 952, 955-56 (Fla. 3d DCA 2006).

Ms. Kurt argues that the decrease in the number of English speaking schools in Turkey constitutes a substantial change, which warrants the requested modification. A review of the record, however, shows that Ms. Kurt has not met her burden of proving a substantial change in circumstances. As indicated by her testimony, the Turkish laws, which resulted in a decrease in the number of English speaking schools in Turkey, were in effect when she signed the Agreement. Moreover, the matter of the children’s private school attendance in Turkey was specifically addressed in the Agreement, which was considered and ratified by the court when it was incorporated into the final judgment. Therefore, the alleged changes did not occur post-judgment.

What the record does show, however, is that subsequent to signing the Agreement, Ms. Kurt decided that she did not like living in Istanbul and that she wanted to live in Antalya near her family in a home they had purchased for her. It is this change in her circumstances that caused the alleged difficulties in selecting the agreed-upon full-time English-speaking school, rather than the change in the number of full-time English-speaking schools. Indeed, at the time she entered into the Agreement, Ms. Kurt had been living in Istanbul for almost a year, and had intended to enroll the children in the British School, a full-time English-speaking school, which is not affected by the changes in Turkish law.

As such, we find that Ms. Kurt’s desire to relocate to Antalya is not a substantial change in circumstances justifying a modification of the Agreement as to the children’s agreed-to full-time English-speaking education. See Paskiewicz, 967 So.2d at 279-80 (holding that decision to relocate alone is not a substantial change in circumstances justifying modification); Ogilvie v. Ogilvie, 954 So.2d 698, 701 (Fla. 1st DCA 2007) (holding that relocation alone is not a substantial change in circumstances sufficient to support custody modification); Cecena v. Chambers, 938 So.2d 646, 649 (Fla. 2d DCA 2006) (“[A] parent’s relocation that is contemplated by a marital settlement agreement is not a substantial change in circumstances in itself.”); Ba-zan, 924 So.2d at 956-57 (holding that allegations “that former wife ... would benefit from the custody change and that the child would live in a home rather than a rental apartment ... are insufficient as a matter of law to satisfy the ‘substantial change’ test”).

Accordingly, the trial court’s order modifying the education and visitation provisions is reversed and remanded with instructions directing the trial court to reinstate the final judgment dated April 16, 2008, incorporating the parties’ April 11, 2008 marital settlement agreement. This decision shall take effect immediately without regard to the filing or disposition of any motion for rehearing.

Reversed and remanded with directions.

      . As of April 2008, Ms. Kurt had been living in Istanbul, Turkey for 10 months.

      . The agreement, which provides that Florida law governs even if the children are residents of another jurisdiction, was dictated to a court reporter and orally agreed to by the parties.

      . Paragraph 12(a) provides:
      The parties have agreed that one of the considerations for some of the provisions that have been included, is that (he wife will have the right to relocate to Turkey with the minor children if she chooses to do so on or before the end of August of 2009. Her ability to travel is unconditional, which means that if she chooses to go there will be no defense raised or pleadings filed with the Court to delay or frustrate or challenge the wife’s efforts at relocation.


text:
    Tonuya RAINEY, Petitioner, v. Al LAMBERTI, as Sheriff of Broward County, Florida, and the State of Florida, Respondents.
    No. 4D09-1033.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2009.

      Howard Finkelstein, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, Celia A. Terenzio and August A. Bonavita, Assistant Attorneys General, West Palm Beach, for respondent.
   PER CURIAM.

Tonuya A. Rainey seeks habeas corpus relief from her bond set in the amount of $185,000.00. We grant the petition and remand for an evidentiary hearing on Rainey’s financial resources and all other appropriate criteria. See Sparkman v. State, 994 So.2d 504 (Fla. 4th DCA 2008); Martin v. Jenne, 745 So.2d 412 (Fla. 4th DCA 1999); Patterson v. Neuman, 707 So.2d 946 (Fla. 4th DCA 1998). It is not the increase in the bond amount from that stated in the arrest warrant that is problematic. State v. Norri.s, 768 So.2d 1070 (Fla.2000); Mata v. Lwmberti, 993 So.2d 642 (Fla. 4th DCA 2008). Rather, as the state concedes, the trial court failed to consider the appropriate pretrial release factors. See Fla.R.Crim.P. 3.131(b)(3); § 903.046, Fla. Stat. (2008); see also Cepe-ro v. Mascara, 981 So.2d 671 (Fla. 4th DCA 2008). Where the evidence at a bond hearing is insufficient on this criteria, ha-beas corpus should be granted and the cause remanded to the trial court for a new determination. Patterson, 707 So.2d at 947.

As we noted in Cepero, “[Ojther circumstances, not apparent in the record before this court, may justify a higher bond, the same bond, or additional conditions and requirements.” 981 So.2d at 672. Accordingly, we grant the petition. On remand, the trial court may consider additional evidence regarding the bond, its amount, and any appropriate conditions associated with pretrial release. See Fla. R.Crim. P. 3.131(b)(3); § 903.046, Fla. Stat. (2008).

POLEN, TAYLOR and CIKLIN, JJ., concur.


text:
    D. Michael CAMPBELL, Esquire, former Counsel for Plaintiff, Sixto Oliva (Deceased), Appellant, v. The STATE of Florida, Florida Department of Business and Professional Regulation, Florida Agency for Health Care Administration, and Florida Department of Legal Affairs, Appellees.
    No. 1D08-756.
    District Court of Appeal of Florida, First District.
    April 3, 2009.
    Rehearing Denied May 6, 2009.

      Richard B. Bush and C. Timothy Gray of Bush, Augspurger & Lynch, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jonathan A. Glogau, James A. Peters and Daniel S. Dearing, Assistant Attorney General, Tallahassee, for Appellees State of Florida and Florida Department of Legal Affairs; David Tarbert and Garnett W. Chisenhall, Tallahassee, for Appellee Florida Department of Business and Professional Regulation; Craig H. Smith, Tallahassee, for Appellee Agency for Health Care Administration.
   PER CURIAM.

D. Michael Campbell, Appellant, seeks review of an order imposing sanctions on him for pursuing baseless litigation in a class action lawsuit against the State and various agencies (collectively, “the State”). We agree with Appellant that the trial court erred in considering the State’s motion for sanctions under the circumstances of this case. Accordingly, we reverse and remand with directions.

The events leading to the trial court’s imposition of sanctions began in 1999 when Appellant filed a class action lawsuit alleging that the State was liable to certain Medicaid recipients for a portion of the funds it received in its landmark settlement with tobacco companies. The case was dismissed due to the class’ inability to state a cause of action. Before the case was dismissed, however, the State requested sanctions pursuant to section 57.105, Florida Statutes, and the trial court’s inherent power to sanction improper conduct by attorneys. The sanctions request was based on the State’s strong suspicion that the proposed class representative was not a Medicaid recipient. The State argued that the claim was “groundless” and “frivolous” and that the proposed class representative “knew or should have known it from day one.” After a hearing on various motions, the trial court entered an order granting the State’s motion to dismiss but declining to impose sanctions. The court stated that it did “not find that an award of attorney’s fees pursuant to § 57.105, Florida Statutes, [was] warranted.”

After the trial court entered a final order dismissing the case, Appellant sought review in this Court. The State did not cross-appeal the denial of sanctions. Therefore, when this Court issued its opinion affirming the dismissal, there was naturally no mention of the sanctions request. See Oliva v. State, 821 So.2d 446 (Fla. 1st DCA 2002). After this Court issued the mandate, the State filed another motion for sanctions in the trial court. Appellant opposed the trial court’s exercise of jurisdiction over the post-mandate motion, arguing, among other things, that once this Court affirmed the trial court’s order in which it denied sanctions, the order became final, and the trial court was not at liberty to reconsider the issue. The trial court nevertheless allowed the action to proceed. After a long discovery process, the State was able to prove the suspicion it had developed during the first phase of the litigation, and the trial court ordered Appellant to pay attorneys’ fees and costs as sanctions for pursuing baseless litigation and perpetrating a fraud on the court.

The legal argument Appellant advanced below — that the trial court was without authority to revisit the sanctions issue once this Court affirmed the final order dismissing the case — was correct. On appeal, Appellant argues the trial court erred in rejecting this argument, pointing to the doctrines of the law of the case and waiver for support. The doctrine of waiver, not the law of the case, applies here. The Florida Supreme Court explained the distinction between these closely-related doctrines in Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla.2001). There, the court explained, “The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Id. at 105. It further explained that “the law of the case doctrine is limited to questions of law actually presented and considered on a former appeal,” including “issues implicitly addressed or necessarily considered by the appellate court’s decision.” Id. at 106. The Juliano court noted, “A corollary of the law of the case doctrine is that a lower court is not precluded from passing on issues that ‘have not necessarily been determined and become the law of the case.’ ” Id. (quoting Greene v. Massey, 384 So.2d 24, 27 (Fla.1980)). The Juliano court acknowledged that dicta in its previous decision in Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976), had caused an improper conflation of the doctrines of the law of the case and waiver in the district courts. Juliano, 801 So.2d at 106-07. The court then clarified that under Airvac, a party’s failure “to raise an issue on appeal that was the subject of the trial court’s ruling” precludes reconsideration of the issue, not because the trial court’s ruling has become the law of the case, but because the failure to raise that issue on appeal has effectuated a waiver of future arguments regarding that issue. Id. at 107.

The facts of Airvac illustrate the principle of waiver in the context relevant to this appeal. In Airvac, the defendant in an action for breach of warranty sought to amend its answer four days prior to trial. 330 So.2d at 468. The motion was denied, and the matter proceeded to a trial, which resulted in the entry of a verdict for the defendant. Id. The plaintiff appealed, but the defendant failed to cross-appeal the denial of its motion to amend its answer. Id. The plaintiff prevailed on appeal, and a new trial was required. Id. On remand, the defendant again sought to amend its answer, and the motion to amend was denied. Id. The second trial resulted in a final judgment for the plaintiff, and the defendant appealed. Id. The district court reversed, holding that the trial court should have allowed the defendant to amend its answer. Id. The supreme court reviewed the district court’s decision and determined that the trial court properly-denied the motion to amend on remand because the defendant failed to appeal the denial of the same motion in the first appeal. Id. at 469.

Airvac’s holding, as clarified in Ju-liano, requires us to hold that once a denial of sanctions has become final, the party who sought sanctions is not permitted to pursue sanctions again based on the same misconduct. This rule applies even if the party seeking sanctions has discovered another legal theory that would support the request. See Bass v. State Fawn Life Ins. Co., 649 So.2d 924, 926 (Fla. 3d DCA 1995) (noting that a trial court properly denied a motion for attorneys’ fees where, after an affirmance of the trial court’s first denial of attorneys’ fees due to a pleading deficiency, the litigant filed another motion for fees under a new legal theory that “could have and should have been addressed” in the first motion). Any other rule would violate both the doctrine of waiver and the policy of finality, which “require[s] that an end shall be put to litigation.” See Petition for Vermeulen, 122 So.2d 318, 320 (Fla. 1st DCA 1960).

Here, because Appellees requested fees in the initial phase of the litigation, and the trial court expressly stated that it did not find that sanctions were warranted under section 57.105, the trial court should not have revisited the issue. The fact that the trial court ultimately granted the motion based on its inherent authority, rather than section 57.105, does not make a difference. The post-mandate motion was based on the same basic facts as the motion filed in the initial phase of litigation. In denying the State’s affirmative request for sanctions, the trial court indicated that the State had failed to prove its case for sanctions under any theory, even though it did not expressly address the suggestion that it impose sanctions under its inherent authority to do so. The trial court erred in considering a renewed motion for sanctions after the denial of the motion had become final through an affirmance on appeal.

We wish to make clear, however, that we do not intend to suggest approval of Appellant’s conduct. The trial court found that Appellant, who is an attorney, filed a class action on behalf of a client he knew or should have known was not a member of the proposed class, a finding Appellant does not contest on appeal. The record makes clear, and the trial court’s order suggests, that Appellant continued to pursue this baseless litigation even after learning that the State suspected Appellant’s client was not a member of the proposed class. Such conduct is reprehensible. Unfortunately, because the State did not seek review of the previous denial of its motion for sanctions, it was precluded from a second bite at the apple following our affirmance of the dismissal with prejudice of the action. Under these circumstances, we have no choice but to reverse. For the reasons stated above, we reverse and remand for vacation of the final order on the State’s motion for sanctions and entry of an order denying the post-mandate motion for sanctions.

REVERSED and REMANDED with directions.

WEBSTER, BROWNING, and LEWIS, JJ., concur.

      . The Stale argues that the trial court did not have the proper record to award sanctions during the first phase of the litigation. This argument has no bearing on our decision; it was the State’s responsibility to support its motion once it was filed.