author: SILBERMAN, Judge.

text:
    M.A.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5200.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 2010.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

M.A.R., a juvenile, seeks review of the trial court’s order adjudicating him delinquent, placing him on probation, and suspending his driver’s license based on his admission to the offense of fleeing or eluding. M.A.R. argues that the trial court erred in determining that the mandatory sentencing provisions of sections 316.1935(5) and (6), Florida Statutes (2008), apply to juveniles. Because sections 316.1935(5) and (6) do not contain a clear legislative mandate that they apply to juvenile proceedings, the court erred in determining that it was required to adjudicate M.A.R. delinquent and suspend his driver’s license under these provisions.

Prior to entering his plea to the charge in this case, M.A.R. had filed motions asking the court to issue an order finding that an adjudication of delinquency and driver’s license revocation were not required under sections 316.1935(5) and (6). M.A.R. argued that these adult sanctions were not applicable to juveniles. The court held a hearing on the motions and issued an order denying relief. The court thereafter imposed sanctions including an adjudication of delinquency and suspension of M.A.R.’s driver’s license.

The issue on appeal is whether the mandatory sentencing provisions in sections 316.1935(5) and (6) apply to juveniles. Sections 316.1935(l)-(4) make it a crime to commit the offenses of fleeing or eluding a law enforcement officer and aggravated fleeing or eluding. Subsections (5) and (6) provide as follows:

(5) The court shall revoke, for a period not less than 1 year nor exceeding 5 years, the driver’s license of any operator of a motor vehicle convicted of a violation of subsection (1), subsection (2), subsection (3), or subsection (4).
(6) Notwithstanding s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section. A person convicted and sentenced to a mandatory minimum term of incarceration under paragraph (3)(b) or paragraph (4)(b) is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum sentence.

We review the court’s construction of these statutes de novo. Polite v. State, 973 So.2d 1107, 1111 (Fla.2007).

“[T]he legislature has created a juvenile justice system as a totally separate and distinct rehabilitative alternative to the punitive criminal justice system, and not as a subset of that system with all of its attendant punitive measures and costs.” V.K.E. v. State, 934 So.2d 1276, 1278 (Fla.2006). Thus, adult sanctions are not applicable to juvenile proceedings unless the legislature makes them expressly applicable. Id. at 1282. The resolution of this question will therefore turn upon “whether there is a clear legislative mandate to have sections” 316.1935(5) and (6) apply to juvenile proceedings. See T.L.S. v. State, 949 So.2d 290, 292 (Fla. 5th DCA 2007).

In this case, no such mandate appears. Section 316.1935(5) applies to defendants “convicted of a violation of subsection (1), subsection (2), subsection (3), or subsection (4).” However, juveniles who have been adjudicated delinquent are not “convicted.” See § 985.35(6), Fla. Stat. (2008); State v. N.P., 913 So.2d 1, 2 (Fla. 2d DCA 2005); D.A. v. State, 11 So.3d 423, 423 (Fla. 4th DCA 2009). Thus, the mandatory sentencing provision of section 316.1935(5) does not apply. Compare N.P., 913 So.2d at 2 (holding that section 806.13(6)(a), Florida Statutes (2003), does not apply to juveniles because it provides for the imposition of a fíne “only on those individuals who have been ‘convicted’ ” and “juveniles are not deemed to be ‘convicted’”); with State v. K.R.G., 12 So.3d 1269, 1269 (Fla. 2d DCA 2009) (applying to juvenile proceedings section 322.056(1)(a)(1), Florida Statutes (2007), which requires revocation of the driver’s license of a person under 18 years of age who is found guilty of or delinquent for certain crimes).

We reject the State’s argument that, under section 322.01(ll)(a), Florida Statutes (2008), an adjudication of delinquency constitutes a “conviction.” Section 322.01(ll)(a) provides as follows:

“Conviction” means a conviction of an offense relating to the operation of motor vehicles on highways which is a violation of this chapter or any other such law of this state or any other state, including an admission or determination of a noncriminal traffic infraction pursuant to s. 318.14, or a judicial disposition of an offense committed under any federal law substantially conforming to the aforesaid state statutory provisions.

The State’s argument is not persuasive for two reasons. First, section 322.01(ll)(a) expressly applies to the use of the term in chapter 322, not chapter 316. Chapter 322 is entitled “Drivers’ Licenses,” and section 322.01 sets forth definitions “[a]s used in this chapter.” In fact, the legislature has clearly explained that adjudications of delinquency do not constitute convictions “[ejxcept as the term ‘conviction’ is used in chapter 322” and except for use in subsequent proceedings under chapter 985. § 985.35(6). Second, section 322.01(ll)(a) does not contain a clear legislative mandate that it apply to juvenile proceedings.

As for section 316.1935(6), we recognize it is not limited to defendants “convicted” of particular violations. However, section 316.1935(6) likewise does not contain a clear legislative mandate that it apply to juvenile proceedings. Subsection 316.1935(6) states, in pertinent part, that “no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section.” It does not reference juveniles or adjudications of delinquency or withholds of adjudication of delinquency. Furthermore, juvenile courts do not “suspend, defer, or withhold adjudication of guilt”; they adjudicate or withhold delinquency. See § 985.35(4)-(6); State v. Menuto, 912 So.2d 603, 607 (Fla. 2d DCA 2005) (“[T]he juvenile justice system does not recognize the concept of ‘guilt.’ ”).

The State’s reliance on State v. A.B., 725 So.2d 1263 (Fla. 4th DCA 1999), is misplaced. The court in A.B. interpreted a statute that provided for sentencing of a minor found to have committed an offense involving the use or possession of a firearm. See id. at 1263 n. 1. In determining that this juvenile statute permitted a withhold of adjudication of delinquency, the court explained that it did not expressly preclude a withhold of adjudication of delinquency. See id. at 1263. The court contrasted the juvenile statute with its “adult counterpart,” which expressly precluded a withhold of adjudication of guilt. See id. A.B. did not concern the issue of whether the adult sanction applied to the juvenile. Thus, the court’s reference to the provision allowing a withhold of adjudication of guilt in the adult sanction was not for the purposes of determining that the adult sanction contained a clear legislative mandate that it applied to juvenile proceedings.

For these reasons, the trial court erred in determining that the mandatory sentencing provisions of sections 316.1935(5) and (6) apply to juveniles. Because the trial court was clearly under the impression that these adult sanctions were mandatory, we reverse and remand for reconsideration of the disposition.

Reversed and remanded.

WHATLEY and BLACK, JJ., Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge. VILLANTI, Judge,

license: Public Domain

text:
    Alexander POLANCO, Appellant, v. Odila S. CORDEIRO, Appellee.
    No. 2D09-2998.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 2010.

      Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
    No appearance for Appellee.
   SILBERMAN, Judge.

Alexander Polanco appeals a final judgment of injunction against repeat violence entered in favor of Odila S. Cordeiro. Because Mrs. Cordeiro failed to prove any acts of violence or stalking, we reverse.

In her petition, Mrs. Cordeiro alleged that Mr. Polanco stalked and harassed her at work and at church. They had been working for Walt Disney World as concierges. She asserted that Mr. Polanco was hostile and “made our lives miserable.” After she and a number of coworkers spoke with management, Mr. Polanco was demoted. Mrs. Cordeiro added that Mr. Polanco blamed her, “has been stalking and harassing” her, and stared at her “with a bad look in his eyes.” She alleged that at one point he stated, “I will get you back.” At her request Walt Disney World transferred her to another location and gave her the name of a company psychologist, whom Mrs. Cordeiro had seen. As to the harassment at church, Mrs. Cordeiro alleged that Mr. Polanco was present while his wife and his sister began yelling at her, cursing her, and belittling her. She told Mr. Polanco “to tell them to have respect for” her and “to stop yelling at” her.

At the hearing on the petition, Mrs. Cordeiro testified that Mr. Polanco harassed and stalked her. She stated that the problems with Mr. Polanco started at work but added that she did not bring a witness from work because the situation was taken care of by her transfer to a different location. Thus, she did not rely on any allegations of harassment at work and did not testify as to any incidents at work.

Mrs. Cordeiro then testified that “last Saturday [Mr. Polanco] was standing in front of my house and he’s not allowed to.” When asked to explain how he stalked her, she said that Mr. Polanco had been harassing her “through third parties.” She stated that Mr. Polanco told someone that he wanted Mrs. Cordeiro’s husband to lose control at church and hit Mr. Polanco and then Mr. Polanco would sue the Cordeiros for money. It appears that Mrs. Cordeiro wanted to prevent Mr. Polanco from attending the same church so that her husband would not be provoked to hit Mr. Polanco and then be sued. The parties disputed whether the priest told Mr. Po-lanco not to return to the church.

The trial judge stated that he would enter the injunction “based upon what I see today.” The judge then stated, 'Wall are so emotional about this that if I do not enter this injunction, and you just told me you’re going back to that church, there will be a problem.” The judge later stated, “Y’all are so emotional and so hostile to each other, there is no way I’m going to let y’all go to the same place.” The judge made no other findings at the hearing. In the written order, the trial judge determined that Mrs. Cordeiro was a victim of repeat violence, but he made no additional findings.

The judge’s findings that the parties were emotional and hostile toward each other were insufficient to support an injunction against repeat violence as provided for in section 784.046(2), Florida Statutes (2008). The statute defines “repeat violence” as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b). A person commits the act of stalking when the person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.” § 784.048(2). The statute defines “harass” as “to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a). A “course of conduct” is a “pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” § 784.048(l)(b).

In Poindexter v. Springer, 898 So.2d 204, 206 (Fla. 2d DCA 2005), this court stated that because the petitioner had not alleged any acts of violence, for the injunction against repeat violence to be valid the respondent had to have committed at least two acts of stalking against the petitioner. The court considered whether the respondent had harassed the petitioner and determined that mailing three letters in one envelope constituted one act and was insufficient to establish a course of conduct. Id. at 207. Thus, the court concluded that the petitioner had failed to prove a sufficient basis for an injunction against repeat violence based on stalking. Id.

Here, Mrs. Cordeiro abandoned her allegations regarding harassment at work. Regarding the church incident, we agree with Mr. Polanco that his failure to stop third parties from yelling at Mrs. Cordeiro and his failure to make them have respect for her are not acts of violence, stalking, or harassment within the statutory definition. Furthermore, a single incident would not support a finding of harassment which requires a course of conduct comprised of a series of acts. See § 784.048(1)(a), (b); Poindexter, 898 So.2d at 207. That Mr. Polanco allegedly stood one time in front of Mrs. Cordeiro’s house also does not support entry of the injunction. This act, taken together with the rest of the evidence, simply does not demonstrate that Mr. Polanco engaged in a pattern of Conduct demonstrating a continuity of purpose that would constitute harassment.

Because Mrs. Cordeiro failed to establish that she was entitled to an injunction for protection against repeat violence, we reverse the final judgment and remand for the trial court to dismiss the petition. See Poindexter, 898 So.2d at 207.

Reversed and remanded.

CASANUEVA, C.J., Concurs.

VILLANTI, J., Concurs with opinion.

VILLANTI, Judge,

Concurring.

I fully concur in this opinion but write to emphasize that this petition should never have been filed to begin with. The petition was filed because Mrs. Cordeiro claims she was “advised” to do so by “the police” when she called them to report her problems with Mr. Polanco. The record does not reflect the actual contents of this phone call, and we only have Mrs. Cordei-ro’s sworn petition in support of this allegation, but if true, this “advice” was clearly improper. Rather, the police should have told Mrs. Cordeiro that this was a civil dispute and that she should consult an attorney. Having not received this advice, Mrs. Cordeiro proceeded pro se and, based upon her allegations, I seriously doubt she ever sought the advice of counsel.

Petitions for injunctions against repeat violence, or against domestic violence for that matter, are to be used only to rectify the egregious conduct outlined in the statutes themselves. See §§ 741.80, 784.046, Fla. Stat. (2009) (domestic violence and repeat violence respectively). These statutory provisions are not a panacea to be used to cure all social ills. In fact, nowhere in the statutory catalog of improper behavior is there a provision for court-ordered relief against uncivil behavior occurring at work or church, which was the crux of Mrs. Cordeiro’s complaint. See Gagnard v. Sticht, 886 So.2d 321, 822 (Fla. 4th DCA 2004) (noting that argumentative behavior that was extremely uncivil and threatening “fell short” of meeting the legal requirements of section 784.046).

Unfortunately, the current version of section 784.046 does not seem to permit the trial court to simply dismiss a sworn petition that does not allege facts that fall within the statutory language. Instead, section 784.046(5) requires that “[u]pon the filing of the petition, the court shall set a hearing to be held at the earliest possible time.” (Emphasis added.) The result is the use of scant judicial resources to conduct unnecessary hearings based on pleadings that could never support the issuance of an injunction. These same hearings often serve only to inflame the parties’ emotions and foster further uncivil behavior. I would encourage the legislature to consider amending the domestic violence and repeat violence statutes to allow judges to dismiss petitions that, on their face, do not contain allegations sufficient to meet the statutory requirements without prejudice to the petitioner refiling a legally sufficient petition if he or she can do so.

Further, nowhere in section 784.046 is there any provision for an award of sanctions against a petitioner who uses the statutory provisions concerning injunctions as a sword rather than a shield. While the lack of statutory sanctions may be a justifiable public policy, if abuses of the injunction process are to be curbed, then a petitioner who knowingly misuses or abuses “the system” should be ordered to pay any attorney fees incurred by the respondent when successfully challenging the petition.

      . As it is currently worded, the repeat violence statute would require a full evidentiary hearing before a circuit court judge even if the petitioner simply signed his or her name to a blank form petition and filed it. In no other context does the law provide for an evidentiary hearing on the substance of a party’s claim in the absence of legally sufficient allegations. While I recognize that many respondents in this type of proceeding are not model citizens, they nevertheless have a due process right to notice of the alleged improper conduct that requires them to appear before the court. Hence, I am in favor of a modest statutory revision that would vest appropriate discretion in our trial judges to prevent wholly unnecessary hearings.

      . I recognize that in certain instances, the trial court may be able to impose sanctions for abuses of the system either on its own motion under section 57.105(1), Florida Statutes (2009), see Bierlin v. Lucibella, 955 So.2d 1206, 1208 (Fla. 4th DCA 2007), or pursuant to its inherent authority.


author: WHATLEY, Judge.

text:
    Gloria L. WHITTINGHAM, Appellant, v. Christopher A. WHITTINGHAM, Appellee.
    No. 2D08-6244.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2010.
    Cherie A. Parker, Clearwater, for Appellant.
    Johnny D. Drizis of Law Office of Johnny D. Drizis, Holiday, for Appellee.
   WHATLEY, Judge.

Gloria Whittingham, the Wife, appeals a final judgment dissolving her marriage to Christopher Whittingham. We. reverse the portion of the final judgment awarding child support to the Husband because the judgment fails to include any findings concerning the incomes of the parties, and therefore, we cannot determine whether the child support award is within the guidelines established in section 61.30, Florida Statutes (2007). We do not find merit in the other issues raised by the Wife and affirm as to those issues without further discussion.

Section 61.30 sets forth guidelines as to the amount of child support which should be awarded based on the monthly incomes of the parties. If a trial court awards child support which deviates more than five percent from the guidelines, it must make a written finding explaining why the guidelines amount would be inappropriate or unjust. § 61.30(l)(a). Consequently, when determining child support a trial court is required to make findings of fact regarding the incomes of the parties because such findings are required in order to determine whether the support award departs from the guidelines. Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010). When a trial court fails to make findings regarding the parties’ incomes, the final judgment is facially erroneous, and although there is no transcript of the hearing in the present case, the lack of a transcript does not preclude reversal. Id.; see Todd v. Guillaume-Todd, 972 So.2d 1003, 1007 (Fla. 4th DCA 2008) (holding that the final judgment was facially erroneous where it did not make any findings as to the net income of the parties for the purpose of calculating child support and it did not explain how the calculation was performed).

We also note that when establishing the child support award, the trial court failed to address health care coverage for the minor child as required by section 61.13(l)(b), Florida Statutes (2007). The order also does not address child care costs and noncovered medical, dental, and prescription medication expenses, and we cannot determine if the trial court considered these costs. See § 61.30(7), (8).

We therefore reverse the final judgment and remand this case for the trial court to recalculate the child support award and enter a new order specifying the basis for the award. The trial court must also consider child care costs, health insurance costs, and noncovered medical, dental, and prescription medication expenses.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

SILBERMAN and BLACK, JJ„ Concur.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Rafiat Mojisola JIMOH, Appellee.
    No. 2D09-3979.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2010.
    Rehearing Denied Jan. 21, 2011.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellant.
    Ronald W. Young, Tampa, for Appellee.
   KELLY, Judge.

The State appeals from a trial court order granting Rafiat Jimoh’s motion to suppress evidence seized after Jimoh was discovered unresponsive behind the wheel of her parked car. The State argues that officers had reasonable suspicion to justify an investigatory stop of Jimoh’s vehicle based on her condition, the fact that the engine was running and the headlights were on, and because the odor of alcohol could be detected coming from the vehicle. We agree and reverse.

Deputy Johnson observed Jimoh sitting in the driver’s seat of her car with the engine running in the parking lot of a convenience store. The deputy testified that Jimoh appeared to be asleep or looking down at her telephone. After inquiring and discovering that Jimoh had been parked there for approximately ten to fifteen minutes, Deputy Johnson called for back-up and Deputy McCalla, an experienced DUI investigator, responded. When Deputy McCalla arrived, he observed a woman “slumped over” at the wheel of her vehicle. The engine was running and the headlights were on. The driver’s side window was open about four inches and Deputy McCalla could smell alcohol coming from the vehicle. Both deputies attempted to wake Jimoh by banging on the car roof and doors. When she did not respond, Deputy McCalla reached into the vehicle, shut off the engine, opened the door, and shook Jimoh until she woke up. He then had Jimoh get out of the car, and based on her bloodshot and glassy eyes together with the odor of alcohol coming from the vehicle, proceeded to conduct a DUI investigation that led to Jimoh’s arrest.

The trial court granted Jimoh’s motion to suppress finding that the facts were indistinguishable from those in Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999). We disagree. In Danielewicz, the officer observed the defendant’s car lawfully parked in the parking lot of a restaurant with the headlights on and the engine running. The defendant was in the driver’s seat apparently asleep. When the officer knocked on the car window, the defendant looked at the officer but did not unlock the door. The officer had to ask the defendant five times to get out of the car. It was after the defendant unlocked the car door and got out of the car that the evidence leading to her DUI arrest was discovered.

On appeal, this court concluded that the investigative stop occurred when the officer ordered Danielewicz out of the car. We held that the investigative stop was not lawful because the officer did not articulate a well-founded suspicion of criminal activity:

In order to justify an investigative stop, the officer must have a well-founded suspicion that the subject of the stop is or is about to become involved in criminal activity. In this case the officer did not articulate a well-founded suspicion of criminal activity. While the officer suspected that Danielewicz was inebriated because she was asleep in her car, he also stated that people sleep in their cars without criminal implication. The officer did not testify that he was concerned for the driver’s personal health. The actions of Danielewicz were susceptible of being interpreted as innocent conduct; therefore, [the officer] needed additional factors before he could validly stop her.

730 So.2d at 364. In contrast, Deputy McCalla testified that when he came up to Jimoh’s car, he could smell alcohol through a window that was open approximately four inches. Despite banging on the roof and doors of the vehicle and calling out to Jimoh, she did not respond. Based on his observations of Jimoh, including her unresponsiveness and the smell of alcohol, Deputy McCalla believed further investigation was warranted. It was at this point that he woke Jimoh and asked her to get out of the car. Accordingly, we conclude that when the investigatory stop occurred, the totality of the circumstances provided Deputy McCalla with a reasonable suspicion that Jimoh may have been impaired, and therefore the investigatory stop was justified.

We reject Jimoh’s contention that the circumstances observed by the officers were consistent with innocent conduct; therefore, they could not have given the officers the requisite founded suspicion to justify an investigatory stop. “A determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). As explained by the Supreme Court:

We said in Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam), “there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.” Id., at 441, 100 S.Ct., at 2754. Indeed, Terry itself involved “a series of acts, each of them perhaps innocent” if viewed separately, “but which taken together warranted further investigation.” 392 U.S., at 22, 88 S.Ct., at 1881; see also [United States v.] Cortez, supra, 449 U.S. [411] at 417-419, 101 S.Ct., at 694-696, 66 L.Ed.2d 621. We noted in Gates, 462 U.S. [213] at 243-244, n. 13, 103 S.Ct. [2317] at 2335 n. 13, 76 L.Ed.2d 527, that “innocent behavior will frequently provide the basis for a showing of probable cause,” and that “[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” That principle applies equally well to the reasonable suspicion inquiry.

United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (footnote omitted). We therefore reverse the trial court’s order granting Jimoh’s motion to suppress and remand for further proceedings.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.


author: ALTENBERND, Judge.

text:
    William CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1386.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 2010.
   ALTENBERND, Judge.

William Carter challenges the order of the postconviction court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 in which he alleged that his plea was involuntarily entered. We reverse the order of summary denial and remand to the postconviction court for an evidentiary hearing.

Mr. Carter was originally charged in count one of the information with attempted robbery with a firearm, a second-degree felony. See §§ 812.13(2)(a); 777.04(1),(4)(c), Fla. Stat. (2005). The information also alleged that Mr. Carter was subject to a ten-year minimum term of imprisonment under section 775.087(2)(a)(l), Florida Statutes (2005), the 10/20/LIFE statute, for possessing a firearm during the attempted robbery. In count two, Mr. Carter was charged with possession of a firearm, ammunition, or concealed weapon by a convicted felon, a second-degree felony. § 790.23(1),(3), Fla. Stat. (2005). Pursuant to a plea negotiation, the State filed an amended, single-count information charging attempted robbery with a weapon, a second-degree felony. See §§ 812.13(2)(b); 777.04(1),(4)(c). However, at the July 25, 2007, plea hearing, both the prosecutor and defense counsel indicated that Mr. Carter was pleading to the offense of attempted robbery with a firearm/deadly weapon in exchange for a sentence of 7.5 years’ prison as a habitual violent felony offender (HVFO). The State did not request that the trial court impose the ten-year minimum mandatory sentence required by section 775.084(4)(b), nor did it seek the ten-year minimum mandatory sentence required by the 10/20/ LIFE statute. The State also waived any right it had to have Mr. Carter sentenced as a Prison Releasee Reoffender (PRR).

Mr. Carter alleged in his motion that at the time of the plea, he was serving a sentence of thirty-three months’ imprisonment in a separate case. There was no mention of this existing sentence at the plea hearing. At the August 29, 2007, sentencing hearing, the trial court imposed the agreed upon sentence. The court did not state whether the sentence was to run concurrently with or consecutively to any existing sentence, and by operation of law the sentence runs consecutively to the preexisting thirty-three month sentence. § 921.16(1), Fla. Stat. (2005).

In the sole ground in his motion, Mr. Carter alleged that his plea was involuntary because trial counsel advised him that the present sentence would be run concurrently with the thirty-three-month prison sentence that he was serving at the time. He further alleged that had he known that his HVFO sentence would be run consecutively to the existing sentence, he would not have pleaded but would have proceeded to trial. Mr. Carter presented a facially sufficient claim for relief. See Sawyers v. State, 566 So.2d 942, 942 (Fla. 2d DCA 1990); Lang v. State, 758 So.2d 1219, 1219-20 (Fla. 4th DCA 2000). The post-conviction court denied the claim, finding that it was not supported by the transcript of the plea hearing, which did not contain any mention of concurrent or consecutive sentences. The postconvietion court also found that the claim was inherently incredible because Mr. Carter could have received life in prison as a habitual offender. This finding is inaccurate because Mr. Carter was originally charged with two second-degree felonies. We conclude that the postconviction court erroneously denied the motion and that Mr. Carter is entitled to an evidentiary hearing on his claim.

Mr. Carter sought either to have the sentence in the present case run concurrently with his prior sentence, which he alleged was his understanding of the plea agreement, or to withdraw the plea and proceed to trial. Mr. Carter is not entitled to be resentenced according to his understanding of the plea agreement; the only relief available to him is to withdraw his plea. See Green v. State, 857 So.2d 804, 305-06 (Fla. 2d DCA 2003). Should Mr. Carter be successful in withdrawing his plea, the State will no longer be bound by the plea agreement. Id. The State, at such time, may proceed under the original information and reinstate count two. If Mr. Carter is convicted after a trial, he may be sentenced to a significantly longer term of imprisonment than he is currently serving. Id.

Reversed and remanded for further proceedings.

WHATLEY and SILBERMAN, JJ., Concur.

      . The information inaccurately stated that attempted robbery with a firearm was a first-degree felony.

      . The trial court did not indicate whether it was adjudicating Mr. Carter guilty of attempted robbery with a firearm/deadly weapon or attempted robbery with a weapon. The attachments to the postconviction court's order do not contain the judgment and sentence, and this court is unaware of which offense Mr. Carter was ultimately convicted.

      .Mr. Carter was being held in county jail pending trial on the present case while he was also serving the thirty-three-month prison sentence. Mr. Carter received 373 days jail credit on the 7.5 years’ HVFO sentence. As it stands, Mr. Carter will serve fewer than two years more than he would have had the sentences run concurrently.

      . The State may agree to run the present sentence concurrently with his prior sentence, and the postconviction court may resentence Mr. Carter accordingly.


author: VILLANTI, Judge.

text:
    Demetrius Bernard RIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4886.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 2010.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Demetrius Riggins appeals his convictions for escape, driving while license suspended or revoked as a habitual traffic offender, resisting arrest without violence, operating an unregistered vehicle, and unlawful use of a temporary tag. We affirm in part and reverse in part.

On August 18, 2008, Sergeant Burgess, an officer with the Office of Motor Carrier Compliance of the Department of Transportation, stopped the car Riggins was driving because Burgess saw that it had what appeared to be an expired temporary tag. When Burgess asked Riggins for his driver’s license, registration, and insurance, Riggins produced only a Florida identification card. From Riggins’ Florida ID card and the vehicle identification number (VIN) obtained from the car Rig-gins was driving, Burgess determined that Riggins’ driver’s license was suspended and that the car he was driving was not properly registered. When Burgess began to place Riggins under arrest for driving on a suspended license, Riggins broke away, ran to another vehicle, got in, and rode away. Riggins was later arrested and charged with multiple offenses.

Following a jury trial, Riggins was found guilty as charged. We affirm Rig-gins’ convictions for escape, driving while license suspended or revoked as a habitual traffic offender, and resisting arrest without violence without comment. However, we must reverse Riggins’ convictions for operating an unregistered vehicle and unlawful use of a temporary tag because the only evidence supporting these convictions was inadmissible hearsay.

I. Operating an Unregistered Vehicle

Section 320.02(1), Florida Statutes (2008), requires that every owner or “person in charge of a motor vehicle that is operated or driven on the roads of this state” register the vehicle. Section 320.57(1) provides that any person convicted of violating any of the provisions of chapter 320 is guilty of a second-degree misdemeanor unless otherwise provided. To convict Riggins of the second-degree misdemeanor of operating an unregistered vehicle, the State had to prove by legally sufficient evidence that the vehicle Riggins was driving was not, in fact, registered in this state.

At trial, the only evidence offered to prove this element of the offense was Burgess’s testimony that he had run Riggins’ car’s VIN through the FCIC/NCIC database on his in-car computer and had determined from the information provided by that database that Riggins’ car “wasn’t registered properly.” Riggins objected to this testimony on hearsay grounds, arguing that Burgess’s testimony as to what the FCIC/NCIC database “said” was hearsay. In response, the State argued that this testimony fell within the hearsay exception for either absence of an entry in public records or absence of an entry from business records. The State did not offer any evidence in the form of a certified printout from FCIC/NCIC to support Burgess’s testimony. The trial court overruled Riggins’ objection, which was error for two reasons.

First, Burgess’s testimony does not fall within the hearsay exception for “[ajbsence of public record or entry.” That hearsay exception allows for the admission of

[ejvidence, in the form of a certification in accord with s. 90.902, or in the form of testimony, that diligent search failed to disclose a record, report, statement, or data compilation or entry, when offered to prove the absence of the record, report, statement, or data compilation or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation would regularly have been made and preserved by a public office and agency.

§ 90.803(10), Fla. Stat. (2008). Here, the State did not offer into evidence either a certification in accord with section 90.902 or testimony from someone with knowledge that a diligent search failed to disclose any record, report, statement, or data compilation or entry. While it is possible that an officer might be able to provide such testimony of diligent search in some cases, the testimony presented here did not satisfy that requirement. Burgess specifically testified that he could have checked another database “to query more information as far as title history, registration history, other tags that might be associated with certain vehicles,” but he did not. Given this admission, Burgess cannot be said to have performed a “diligent search” that failed to disclose a record that should have been made and preserved. Thus, Burgess’s testimony was not admissible under the hearsay exception for absence of information from a public record.

Second, Burgess’s testimony does not fall into the related exception for absence of an entry from business records. Section 90.803(7) provides:

Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness.

To admit evidence under this section, “it must be shown that the records were kept in accordance with section 90.803(6) and in such a manner that the fact would have been recorded if it had occurred. It is necessary to call a witness to testify to the required foundation.” Rae v. State, 638 So.2d 597, 598 n. 3 (Fla. 4th DCA 1994); see also Garcia v. State, 564 So.2d 124, 128 (Fla.1990) (finding that trial court improperly excluded payroll records on hearsay grounds when the records would have supported the defendant’s defense and when the records custodian for the payroll records would have testified as to how the payroll records were maintained). Here, the State called no witness who could establish this required foundation.

We note that the State could have obtained a certification from the Department of Highway Safety and Motor Vehicles to establish that there was no record of a proper registration of Riggins’ car on the date in question. The State could also have called a witness to testify as to how the FCIC/NCIC records were maintained and to testify that a diligent search of its database did not turn up any registration for Riggins’ car. However, Burgess’s testimony that he accessed the FCIC/NCIC database and did not find any registration for Riggins’ car, standing alone, is hearsay when offered to prove that the car was not actually registered, and the testimony does not fall into any exception to the hearsay rule. Therefore, the trial court should have sustained Riggins’ hearsay objection. Moreover, since this legally insufficient evidence was the only evidence offered to prove that Riggins was operating an unregistered vehicle, the trial court should have granted Riggins’ motion for judgment of acquittal on this charge. Accordingly, we must reverse this conviction and sentence.

II. Unlawful Use of a Temporary Tag

Riggins also contends that the trial court erred by overruling his hearsay objection to Burgess’s testimony concerning the expiration date that was written on the temporary tag affixed to the car Riggins was driving at the time of the stop. Rig-gins argues that because this evidence was improperly admitted and was the only evidence offered to support the charge of unlawful use of a temporary tag, his conviction for this offense should be reversed. For reasons similar to those discussed above, Riggins is correct on this issue as well.

Section 320.131(2) provides for the issuance of temporary license tags for motor vehicles in certain instances. Such tags are valid for thirty days. Section 320.131(3) makes it a noncriminal traffic infraction to display a temporary tag that has been expired for less than seven days. The same section makes it a second-degree misdemeanor to display a temporary tag that has been expired for seven days or more. Thus, to prove the misdemeanor offense, the State must prove both the actual expiration date of the temporary tag and the date of the traffic stop to establish that the necessary time frame has elapsed.

Here, the State alleged that the temporary tag affixed to Riggins’ vehicle “showed” an expiration date that was more than seven days prior to the date of the stop. It supported this charge with the testimony of Burgess, who testified that the expiration date written on the tag was July 22, 2008, and that he stopped Riggins on August 18, 2008. Riggins objected to Burgess testifying as to the expiration date written on the tag on hearsay grounds. The trial court overruled the objection, which was error.

As Riggins points out, the definition of hearsay includes “written assertion[s]” that are “offered in evidence to prove the truth of the matter asserted.” § 90.801(1). Thus, “[t]he unverified writing of a third person, like the ordinary speech of a third person, is hearsay.” Garrett v. Morris Kirschman & Co., 336 So.2d 566, 569 (Fla.1976); see also Pickrell v. State, 301 So.2d 473, 474 (Fla. 2d DCA 1974) (holding it was error to allow a police officer to testify that he had “teletype[d] Tallahassee for the name of the owner of the vehicle” and “the tag was identified as belonging to appellant” because such evidence was inadmissible hearsay about the unverified contents of a teletype); Auletta v. Fried, 388 So.2d 1067, 1068 (Fla. 4th DCA 1980) (“[Ujnverified out-of-court writings attempted to be introduced for the purpose of establishing the truth of matters contained in the writings constitute hearsay in exactly the same manner as out-of-court oral declarations.”).

In this case, the date written on Riggins’ temporary tag was an out-of-court written assertion from an unknown person regarding the date the temporary tag was to expire. Burgess’s testimony concerning that alleged date was testimony repeating that out-of-court statement in an effort to prove the truth of the matter asserted, i.e., that the date he saw written on the temporary tag was, in fact, its expiration date. Thus, the testimony concerning that date was hearsay that does not fall within any of the recognized hearsay exceptions, and it should have been excluded.

In this appeal, the State argues that it will be unable to effect valid traffic stops if it cannot use this testimony and that it will be unable to enforce the law regarding temporary tags. We disagree. To support the validity of a traffic stop, an officer may testify that a tag was expired without having to relate the specific date asserted on the tag. In those instances, the officer’s testimony is not offered to prove the truth of the matter asserted, i.e., that the tag is, in fact, expired. Instead, the testimony in that instance is offered to show only that the officer had a reasonable basis for effecting the stop. It is only when the actual expiration date of the tag is necessary to prove an element of the charged offense that testimony concerning the date written on the tag becomes inadmissible hearsay.

Further, this ruling does not hamper the State’s ability to enforce the law regarding expired temporary tags. The State may continue to enforce that law by obtaining proper documentation from the Department of Highway Safety and Motor Vehicles in admissible form to show the issuance and expiration dates of a temporary tag if, as in this case, it needs to prove the actual date of issuance and/or expiration.

As to this charge against Riggins, Burgess’s testimony concerning the expiration date written on the temporary tag was inadmissible hearsay because it was offered exclusively to prove the truth of the matter asserted in the writing, i.e., that the date written on the tag was the true expiration date of the tag. Therefore, the trial court should have sustained Riggins’ hearsay objection. Moreover, since this legally insufficient evidence was the only evidence offered to prove that Riggins was unlawfully using a temporary tag, the trial court should have granted Riggins’ motion for judgment of acquittal on this charge. Accordingly, we reverse this conviction and its sentence.

Affirmed in part and reversed in part.

DAVIS and MORRIS, JJ., Concur.

      . Officers working for the Office of Motor Carrier Compliance within the Department of Transportation are sworn law enforcement officers. While their primary duties involve regulation of commercial vehicles, they have the authority to issue traffic citations and effect arrests just like any other law enforcement agency in the state.

      . Section 322.051, Florida Statutes (2008), authorizes the Department of Highway Safety and Motor Vehicles to issue an identification card either in addition to or in lieu of a driver’s license upon satisfactory proof of identity and date of birth. While a Florida ID card looks very similar to a Florida driver’s license and may be a substitute for proving identity, see § 322.051(7), it is not a substitute for proving authority to operate a motor vehicle.


text:
    Antonio Maurice WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2264.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 2010.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Antonio Maurice Williams appeals his judgment and sentence for burglary of a dwelling. Williams entered an open plea and challenges the sentence imposed of ten years’ probation with a condition of probation that he serve forty-eight months in prison. The State properly concedes that the original sentence was illegal. The trial court twice attempted to correct the sentence, and the State also properly concedes that the trial court did not have jurisdiction either time it attempted to correct the sentence. Accordingly, we reverse Williams’ sentence and remand for resentencing.

At the sentencing hearing held on May 6, 2009, the trial court imposed a sentence of ten years’ probation with a condition that Williams serve forty-eight months in prison. Defense counsel questioned whether the period of incarceration as a condition of probation could exceed a year. The trial court stated that it would look into the issue and that it could modify the sentence within ten days if the structure of the sentence was technically incorrect.

Williams prematurely filed a notice of appeal on May 12, 2009. The notice became effective to vest jurisdiction in this court when the trial court rendered the judgment and sentence on May 14, 2009. See Fla. R.App. P. 9.110(0- On May 19, 2009, the trial court rendered an order of disposition indicating that Williams’ sentence was modified to forty-eight months in prison to be followed by seventy-two months of probation. On June 1, 2009, the trial court rendered an order of probation indicating Williams was sentenced to forty-eight months in prison to be followed by seventy-two months of probation.

On December 22, 2009, Williams filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to challenge the jurisdiction of the trial court to modify the sentence after the notice of appeal was filed. On March 5, 2010, the trial court entered an order vacating the previous judgment and sentence. On March 10, 2010, the trial court rendered a written judgment and sentence ordering Williams to serve forty-eight months in prison to be followed by seventy-two months of probation.

Williams correctly argues and the State properly concedes that Williams must be resentenced because his original sentence was illegal and the trial court did not have jurisdiction either time it attempted to correct the sentence. Section 948.03(2), Florida Statutes (2008), provides that if the trial court

imposes a period of incarceration as a condition of probation, the period shall not exceed 364 days, and incarceration shall be restricted to either a county facility, a probation and restitution center under the jurisdiction of the Department of Corrections, a probation program drug punishment phase I secure residential treatment institution, or a community residential facility owned or operated by any entity providing such services.

Thus, the sentence imposing forty-eight months in prison as a condition of probation violated section 948.03(2) because it exceeded 364 days and because the trial court ordered that Williams serve the time in state prison.

The trial court was without jurisdiction to resentence Williams after the notice of appeal was filed and became effective on May 14, 2009. See Knapp v. State, 741 So.2d 1150, 1151 (Fla. 2d DCA 1999) (recognizing that the circuit court has no jurisdiction to correct a sentence while an appeal of the sentence is pending). The trial court was also without jurisdiction to correct the sentence pursuant to the motion to correct sentencing error because the trial court did not rule on the motion within sixty days and did not extend the period of time to rule on the motion before the sixty-day period expired. See Fla. R.Crim. P. 3.800(b)(1)(B), (b)(2)(B); Conroy v. State, 938 So.2d 687, 688 (Fla. 2d DCA 2006); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001). Thus, the order granting relief and the new judgment and sentencing documents are a nullity. See Jackson, 793 So.2d at 118.

Therefore, we reverse Williams’ sentence for burglary of a dwelling and remand for resentencing.

Reversed and remanded for resentenc-ing.

KELLY and BLACK, JJ., Concur.


text:
    David L. SHIERLING, Appellant, v. Willie E. HALL, Appellee.
    No. 2D09-2922.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 2010.
    David L. Shierling, pro se.
    No appearance for Appellee.
   SILBERMAN, Judge.

David L. Shierling seeks review of the trial court’s order denying his motion to modify a final judgment of injunction for protection against repeat violence which prohibits him from going within 500 feet of the residence or 100 feet of the automobile of Willie E. Hall, Shierling’s next-door neighbor. Shierling argues that the court abused its discretion in refusing to modify the injunction so he could move back into his home but still have no contact with Hall. We recognize the difficult position in which the permanent injunction puts Shi-erling because it effectively precludes him from living in his home with his family. However, Shierling did not present any evidence or argument that would support a finding that the denial of his motion constituted an abuse of discretion. See Simonik v. Patterson, 752 So.2d 692, 692-93 (Fla. 3d DCA 2000). Accordingly, we affirm. We note that this affirmance does not preclude Shierling from moving to modify the injunction in the future should he be able to present evidence that warrants modification.

Affirmed.

ALTENBERND and BLACK, JJ., Concur.


text:
    In the Interest of D.R.C., I.G., and D.J., children. Department of Children and Family Services, Petitioner, v. J.G., D.C., W.J., and Guardian Ad Litem Program, Respondents.
    No. 2D10-4431.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.

      Bill McCollum, Attorney General, Tallahassee, and David J. Lopez, Assistant Attorney General, Tampa, for Petitioner.
    Wendie Michelle Cooper, Tavares, for Respondent Guardian ad Litem Program.
    No appearance for remaining Respondents.
   VILLANTI, Judge.

The Department of Children and Family Services seeks a writ of certiorari directed to the nonfinal, nonappealable order entered by the trial court that vacated the Mother’s consent to the dependency of her children and scheduled a hearing on the Department’s dependency petition. Because the Department did not establish that this order results in irreparable harm, we dismiss the petition.

The record before this court is limited to the trial court’s order vacating the Mother’s consent. According to the facts contained in that order, the Mother appeared in court on Monday, August 9, 2010, with appointed counsel and consented to the dependency of her children. After the trial court was satisfied that the Mother’s consent was voluntary, it accepted her consent and the Department’s case plan.

Two days later, the Mother appeared before the trial court with different counsel and stated that she wanted to withdraw her consent. The Mother’s counsel explained that the Mother felt she had been forced by prior counsel to enter the consent because that counsel had told her that if she went to trial she would lose. Counsel conceded that the trial court had not made any errors in its colloquy with the Mother or in accepting her consent two days earlier. However, counsel requested that the court permit the Mother to withdraw her consent and proceed to an adjudicatory hearing on the dependency petition. Apparently, the Mother did not testify. Thus, the trial court granted this motion based on counsel’s unchallenged representations and scheduled an adjudicatory hearing on the Department’s dependency petition.

In response to the order vacating the Mother’s consent, the Department filed a petition for writ of certiorari in this court, contending that the trial court departed from the essential requirements of the law in setting aside the Mother’s consent because the Mother had not established any legal ground for withdrawing her consent. The Department did not address, or even mention, whether the trial court’s order resulted in irreparable harm to the Department. The Guardian ad Litem filed a concession of error which also did not address whether the trial court’s order resulted in irreparable harm. The Mother did not appear in this proceeding, either pro se or through counsel.

Despite the Mother’s nonappearance and the Guardian’s concession of error, we must dismiss the Department’s petition because the Department has not established entitlement to relief by means of certiorari. “[W]hen an appellate court reviews an [sic] non-appealable non-final order rendered by a trial court, the party seeking review must demonstrate that the trial court departed from the essential requirements of law and that the resulting harm is irreparable and cannot be remedied on appeal following final judgment.” Dep’t of Children & Families v. L.D., 840 So.2d 432, 435 (Fla. 5th DCA 2003) (citing Belair v. Drew, 770 So.2d 1164 (Fla.2000) (emphasis added); Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla.1998); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)). This standard of review applies to petitions for certiorari filed in dependency and termination proceedings, just as it does in other civil actions. See, e.g., L.D., 840 So.2d at 435; State, Dep’t of Children & Family Servs. v. L.G., 801 So.2d 1047, 1050 (Fla. 1st DCA 2001); S.H. v. Dep’t of Children & Families, 769 So.2d 452, 452 (Fla. 5th DCA 2000). Under this standard, relief by means of certiorari is not available when there is no irreparable harm or when the petitioner has another remedy. See Dep’t of Children & Families v. Clem, 903 So.2d 1011, 1014 (Fla. 5th DCA 2005); L.D., 840 So.2d at 435; S.H., 769 So.2d at 452.

In this case, the Department has not shown that the trial court’s order resulted in irreparable harm that cannot be remedied on direct appeal. As the case now stands, the Mother’s consent to dependency has been withdrawn and there is an adjudicatory hearing scheduled on the Department’s petition for dependency. At that adjudicatory hearing, the Department may prove that the Mother’s children are dependent, at which point it will have suffered no harm. And if the court determines at that hearing that the Department has failed to prove the allegations in its dependency petition, the Department may seek relief on direct appeal from that adverse ruling. In either event, the trial court’s order has not resulted in irreparable harm to the Department so as to entitle it to the issuance of a writ of certiorari. We therefore dismiss this petition.

Dismissed.

SILBERMAN and KELLY, JJ., Concur.

      . The Department chose not to provide this court with a transcript of any of the proceedings before the trial court. This omission, however, has no bearing on our decision in this matter.


text:
    Pamela Ann BROTHERIDGE and Jason Brotheridge, Appellants, v. OPTION ONE MORTGAGE CORPORATION and GRP Loan, LLC, Appellees.
    No. 2D09-4893.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.
    Rehearing Denied Jan. 20, 2011.
    Daniel S. Cruz, Barbara Goolsby, and Michael Stirrup of Florida Rural Legal Services, Inc., Fort Myers, for Appellants.
    J. Matthew Belcastro and Suzanne M. Boy of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellees.
   ALTENBERND, Judge.

Pamela Ann and Jason Brotheridge appeal a judgment of foreclosure entered as a result of a motion for summary judgment. We conclude the record did not demonstrate that GRP Loan, LLC, was entitled to foreclose on the property under a theory of equitable subrogation when the trial court granted its motion for summary judgment. There were significant irregularities in the closing of the loan at issue, as well as in the execution of the loan documents, and the evidence before the trial court failed to demonstrate the nonexistence of a genuine issue of material fact. Therefore, the entry of summary judgment was improper and we reverse.

The Brotheridges are married and own a home in Cape Coral, Florida. In 1995, the home was encumbered by at least two notes and mortgages. The larger note with Centex Mortgage allegedly had an outstanding indebtedness of approximately $208,000. The smaller note, obtained to repair hurricane damage to the home, was a U.S. Small Business Administration loan for $70,000, allegedly with an interest rate of only 3.3 percent. Mrs. Brotheridge operated a pet store that was struggling and needed capital to keep the business open. She hoped to obtain that capital by refinancing the couple’s home.

Pablo Samsing, a mortgage broker with Prime Time Mortgage, contacted Mrs. Brotheridge over the telephone. He led her to believe that she could refinance the home at an interest rate of 8.9 percent and obtain approximately $50,000 to use in her business. Prime Time Mortgage apparently applied for the financing with Option One Mortgage Corporation. Various documents that were part of that application contain what, at this point in the litigation, must be assumed to be the forged signatures of Mr. Brotheridge.

On the day of the closing, a notary public, Maureen Calderone, came to the Brotheridges’ home. At that time, Mrs. Brotheridge first learned that the note would bear an interest rate of 12.45 percent. It is undisputed that Mrs. Brother-idge signed the note and mortgage at that time, borrowing approximately $325,000.

The note and mortgage also contain the purported signature of Mr. Brotheridge, allegedly witnessed by Mrs. Calderone’s husband, Kevin J. Calderone. Mrs. Cal-derone, as a notary, signed the documents, claiming that she identified Mr. Brother-idge from his Florida driver’s license. It is undisputed that he has a Canadian driver’s license. Mrs. Brotheridge denies that Mr. Brotheridge or Mr. Calderone were present at the closing. Expert testimony currently establishes that the signature of Mr. Brotheridge on these documents is a forgery. Thus, at summary judgment, the trial court was required to assume that Mr. Brotheridge had not signed the documents or otherwise been involved in this loan transaction.

Mrs. Brotheridge has never paid anything on this obligation and, with the assistance of counsel, has tried to rescind the loan. In all probability, the obligation is now far larger than the value of the home. The fact that she has lived in the home for several years without making any arrangements to pay this obligation clearly troubled the trial court.

At some point Option One assigned its rights to GRP Loan, LLC. It then moved for summary judgment in this case, maintaining that it was at least entitled to recover the amount of $278,728.47 that allegedly was applied to pay off the two prior mortgages. Significantly, it relied exclusively on dollar amounts described in the settlement statement at the closing to establish its right to foreclose. The trial court granted that summary judgment, reserving the Brotheridges’ right to proceed on their counterclaims. Thereafter, without resolving the counterclaims, it entered the final judgment of foreclosure that is now pending on appeal.

There admittedly is some authority for the theory that a lender can obtain an equitable lien by virtue of equitable subro-gation, not on its own loan documents but based on earlier loans that were paid off in refinancing. See Palm Beach Sav. & Loan Ass’n, F.S.A. v. Fishbein, 619 So.2d 267 (Fla.1993); Suntrust Bank v. Riverside Nat’l Bank of Fla., 792 So.2d 1222 (Fla. 4th DCA 2001). We note, however, that in Fishbein, the earlier notes and mortgages had been executed by both the husband and wife and that it was the husband who had forged his wife’s signature on the documents for the new loan. 619 So.2d at 268. Suntrust Bank involved a situation in which a bank lost its priority inadvertently. 792 So.2d at 1223. Thus, these cases are not factually similar to this case. This ease may involve misconduct by a mortgage broker and a notary. From the record, it is not clear whether their possible misconduct can or should be attributed to Option One and GRP Loan, LLC.

Given the major irregularities at the closing, however, we are unwilling to assume that the settlement statement at that closing is dispositive of this foreclosure. GRP Loan, LLC, did not place any notes or mortgages from Centex Mortgage or the U.S. Small Business Administration in the record. There is no proof that those notes and mortgages were satisfied after the closing. In fact, the only indication that they may have been satisfied by this transaction is a reference to them in the settlement statement. We conclude that the trial court erred in accepting the reference in the settlement statement as proof of what the lender actually did with the proceeds of this loan after closing with Mrs. Brotheridge. There is also nothing to indicate that Mr. Brotheridge ever executed those earlier loan documents; thus, he is suffering a foreclosure of his homestead with no proof that he signed or agreed to the loan. We agree with the Brotheridges that factual issues as to the foreclosure and their counterclaims exist that should be resolved before them home goes to a forced sale.

Even assuming that the earlier notes and mortgages were properly executed by the husband and wife and were satisfied by virtue of this new loan, we question whether an equitable lien under a theory of equitable subrogation should give GRP Loan, LLC, the right to immediate foreclosure under these circumstances. GRP Loan, LLC, had no rights under those earlier documents until the trial court gave it equitable rights. At that point, GRP Loan, LLC, may have received the equitable right to obtain future payments from the Brotheridges under the terms of those earlier loans, which were more favorable to the Brotheridges. However, nothing in this record suggests the Brotheridges were ever extended the opportunity to make payments on those notes to GRP Loan, LLC. Without proof of any default on those earlier notes and being, at worst, in default on forged notes, we are not entirely convinced that this record at summary judgment entitled GRP Loan, LLC, to receive an immediate equitable right to foreclose on this property and, in particular, on Mr. Brotheridge’s homestead.

Reversed and remanded.

DAVIS, J., and WILLIAMS, CHARLES E., Associate Judge, Concur.


author: WALLACE, Judge.

text:
    Darwish Qasim EL-HAJJI, Appellant, v. Sharon Darlene EL-HAJJI, Appellee.
    No. 2D09-2978.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.

      Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.
    Randall 0. Reder of Randall 0. Reder, P.A., Tampa, for Appellee.
   WALLACE, Judge.

Darwish Qasim El-Hajji (the Husband) appeals a final judgment dissolving his marriage to Sharon Darlene El-Hajji (the Wife). The Husband raises the following four arguments on appeal: (1) the circuit court erred .in entering a final judgment that was in conflict with the parties’ stipulated resolution and the circuit court’s oral ruling on certain issues, (2) the circuit court erred in calculating child support, (3) the circuit court erred in allocating the federal dependency exemption with regard to the parties’ minor child, and (4) the circuit court erred in its equitable distribution of the parties’ assets and liabilities. We reverse with regard to the circuit court’s allocation of the federal dependency exemption and its failure to equitably distribute two marital debts. In all other respects, we affirm the final judgment without further comment.

I. ALLOCATION OF THE FEDERAL DEPENDENCY EXEMPTION

The final judgment awards the parties shared parental responsibility of their minor child, with the child spending approximately forty percent of the time with the Wife and sixty percent of the time with the Husband. The final judgment also directs the Wife to pay the Husband monthly child support. The final judgment further provides as follows:

Because the child is legally considered a resident of both parents’ homes[,] the parties are ORDERED to cooperate in alternating the IRS tax deduction for the child. The Wife shall get the deduction in even years, and the Husband in odd years. Again, the impact of these deductions is considered “canceled out” by the rotating nature of the benefit.

The Husband asserts that the circuit court erred in alternating the federal dependency exemption for the child between the parties because section 61.30(ll)(a)(8), Florida Statutes (2008), does not permit the circuit court to allocate the exemption directly but only authorizes it to require the custodial parent to execute a waiver transferring the exemption to the noncustodial parent. In addition, the waiver must be conditioned upon the noncustodial parent’s payment of child support. Id. The Husband further suggests that because the parties did not present evidence of the impact of the exemption at the final hearing, the circuit court “blindly” rotated the exemption between the parties “as a matter of parity” instead of considering the impact of the benefit of the exemption to each respective parent. The Wife agrees, conceding that the circuit erred in ruling on an issue that was not presented at trial.

Section 61.30(ll)(a)(8) provides:

[A circuit] court may adjust the total minimum child support award, or either or both parents’ share of the total minimum child support award, based upon....:
8. The impact of the Internal Revenue Service dependency exemption and waiver of that exemption. The court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in support payments.

Thus, while a circuit court cannot allocate the federal dependency exemption directly, it may require the custodial parent to execute a waiver transferring the exemption to the noncustodial parent dependent upon that parent’s payment of support. Wamsley v. Wamsley, 957 So.2d 89, 92 (Fla. 2d DCA 2007). In addition, a circuit court may determine in its discretion that the parents should share the benefit of the exemption in alternating years. See Salazar v. Salazar, 976 So.2d 1155, 1158 (Fla. 4th DCA 2008).

We disagree with the parties’ position that the circuit court erred in allocating the dependency exemption on the ground that the issue was not presented at trial. Section 61.30(ll)(a)(8) authorized the circuit court to consider the impact of the dependency exemption in determining the child support award. Although neither party addressed the issue at the final hearing, the Husband’s pretrial memorandum specifically asked the circuit court to determine “who will claim the child as a dependant [sic] for the 2008 tax year and subsequent years.” See Geddies v. Geddies, 43 So.3d 888 (Fla. 1st DCA 2010) (holding that even though neither party requested the allocation of the federal dependency exemption, the circuit court did not err in allocating the exemption to the former husband to maximize his disposable income for the benefit and support of the minor children).

We also disagree with the Husband’s suggestion that the circuit court misunderstood the law on this issue and unthinkingly rotated the exemption between the parents as a matter of parity. “The purpose of the exemption is to permit the party paying the support to have more disposable income from which to make such payment.” Negron v. Ray, 769 So.2d 524, 525 (Fla. 5th DCA 2000). Although the Husband’s support obligation as calculated under the child support guidelines worksheet is higher because of his higher income, the Wife is required to pay the Husband child support despite her significantly lower monthly income and roughly equivalent time-sharing with respect to the minor child. We cannot say that the circuit court abused its discretion in determining that the Wife should share in the benefit of the dependency exemption for the minor child in alternating years. See Salazar, 976 So.2d at 1158.

But the circuit court erred in implementing its intent that the parties share in the exemption by failing to direct the Husband to execute a waiver of the exemption in favor of the Wife in alternating years, contingent upon her payment of child support. See § 61.30(11)(a)(8); Salazar, 976 So.2d at 1158. Accordingly, on remand the circuit court must amend the provision in the final judgment with regard to the allocation of the federal tax exemption by directing the Husband to execute a waiver of the exemption in favor of the Wife in even years contingent upon her payment of child support.

I. FAILURE TO EQUITABLY DISTRIBUTE MARITAL LIABILITIES

We also conclude that the circuit court abused its discretion by failing to equitably distribute a loan against the Husband’s 401(k) account and another outstanding loan in the amount of $10,000. Notably, the circuit court provided in the final judgment that “[n]either party made adequate showing for just cause for deviation [from an equal split of marital assets and liabilities;] therefore[,] 50% division is to be applied.”

In its equitable distribution scheme, the circuit court treated the Husband’s 401 (k) account as a marital asset and, in accordance with the evidence, valued the account as of the date of the petition at $24,799. But the Husband also presented unrebutted testimony that the account was subject to an outstanding loan in the amount of $2809.89 when the petition was filed. The parties and the circuit court noted the loan again, without objection by the Wife, when they reviewed the Husband’s proposed equitable distribution schedule.

Although the circuit court correctly treated the 401 (k) account as a marital asset and divided it equally between the parties, it failed to distribute the outstanding loan on the account by subtracting the loan amount from the account value or by equally distributing the loan between the parties. This resulted in an unequal distribution in favor of the Wife of approximately $1400, and the circuit court did not provide any explanation to support an unequal distribution.

Similarly, the Husband presented unre-butted testimony at the final hearing that he had incurred a $10,000 debt in connection with his corporation to cover expenses associated with vacant lots owned by the corporation. The Husband testified that when the corporation was dissolved, the loan became his obligation and that it remained outstanding. Two of the vacant lots owned by the corporation were also distributed to the Husband upon the dissolution of the corporation. The circuit court treated the two lots as marital property and distributed them approximately equally by awarding one of the lots to the Wife and the other to the Husband. However, the circuit court failed to equally distribute the corresponding loan obligation, which resulted in an unequal distribution in favor of the Wife in the amount of $5000.

We conclude that the failure to equally distribute the 401 (k) loan in the amount of $2809 and the $10,000 obligation was an abuse of discretion. On remand, the circuit court must distribute these marital debts between the parties and make any necessary adjustments to its equitable distribution scheme.

III. CONCLUSION

On remand, the circuit court shall address the allocation of the federal dependency exemption between the parties by directing the Husband to execute a waiver of the exemption in favor of the Wife in even years, contingent upon her payment of child support. In addition, the circuit court shall distribute the 401 (k) loan in the amount of $2809 and the $10,000 obligation between the parties and make any necessary adjustments to its equitable distribution scheme. In all other respects, we affirm the final judgment.

Affirmed in part, reversed in part, and remanded.

KELLY and LaROSE, JJ., Concur.

      . The child was almost sixteen years old at the time of the final hearing in March 2009 and will turn eighteen years old in March 2011.

      . The husband claims on appeal that the circuit court erred in failing to distribute a second loan in the amount of $2500 associated with the vacant lots. Contrary to the Husband’s argument, he did not present any testimony at trial concerning the $2500 loan.

      . The Husband agreed to distribute the higher-valued lot to the Wife because that lot carried higher maintenance costs.

      .Although the Wife argues that the circuit court provided an explanation for its refusal to distribute the note as a marital liability, the circuit court’s explanation that there was no testimony authenticating the existence of the $10,000 note is not consistent with the evidence presented at the final hearing.


text:
    ALL REAL ESTATE TITLE SERVICES, INC., a Florida corporation, and Michelle Ann Boyd, Appellants, v. MINQH QUANG VUU and Hanh Luu Vuu, Appellees.
    No. 2D09-1196.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.

      Scott A. Cole and Alejandro Perez of Cole Scott & Kissane, P.A., Miami, for Appellants.
    Samuel J. Heller and Terry L. Hirsch of Englander & Fischer, P.A., St. Peters-burg, for Appellees.
   KELLY, Judge.

Appellants, All Real Estate Title Services, Inc., and Michelle Ann Boyd, challenge a final judgment entered in favor of Minqh Quang and Hanh Luu Vuu finding appellants negligent in mistakenly preparing a satisfaction of a mortgage that the Vuus contended extinguished their ability to recover money owed to them under a note. We reverse.

The Vuus were the owners and holders of a note executed by John Bodziak as president of 1900 Coach House Partner’s, Inc. The note was secured by a purchase money mortgage on property Coach House had replatted into Lots 1, 2, and 3. Coach House sold Lots 1 and 2, and the purchaser of Lot 2 later sold it. During this series of transactions, Boyd and All Real Estate prepared a variety of documents including a satisfaction of mortgage that had the effect of satisfying the original note and mortgage even though Coach House was still obligated on the note and that obligation was supposed to have been secured by Lot 3.

Approximately a year after the Vuus signed the satisfaction of mortgage, Bodz-iak stopped making payments on the Coach House note, and the Vuus sued to collect on the note, to rescind the satisfaction of mortgage, or in the alternative, to foreclose on the property. Coach House and Bodziak raised the affirmative defense of accord and satisfaction, claiming that the satisfaction of mortgage Boyd prepared extinguished the Vuus’ entitlement to payment. The Vuus then brought this action against Boyd and All Real Estate alleging that Boyd had negligently prepared the satisfaction of mortgage and that as a result, they had lost the ability to recover the amount due them under the note. Ultimately, the trial court ruled in favor of the Vuus concluding that Boyd was negligent, that the erroneous inclusion of the language satisfying the note caused the Vuus to “lose their cause of action” on the note, and that the Vuus were damaged in the amount of the unpaid balance.

In this appeal, Boyd and All Real Estate argue that the court should have entered judgment in their favor because even if Boyd had been negligent when she prepared the satisfaction of mortgage, the Vuus were not damaged because, contrary to the trial court’s conclusion, that negligence did not extinguish their claim against Coach House and Bodziak for the balance due on the note. They contend that because the Vuus never intended to extinguish Coach House and Bodziak’s obligations under the note, the mistaken satisfaction of the mortgage is subject to rescission and reformation and thus the Vuus never lost the ability to collect on the note. We agree.

Cancellation or renunciation of a promissory note and release of security is ineffective if it is unintentional or procured by mistake. Gover v. Home & City Sav. Bank, 574 So.2d 806 (Fla. 1st DCA 1991); see also § 673.6041, Fla. Stat. (2001). A court may apply equitable principles to reverse the cancellation of a mortgage satisfaction when that satisfaction is the result of mistake or inadvertence. United Serv. Corp. v. Vi-An Constr. Corp., 77 So.2d 800, 803 (Fla.1955); First Family Mortg. Corp. of Fla. v. White, 549 So.2d 1049, 1050 (Fla. 3d DCA 1989). Thus, the Vuus’ unintentional renunciation of the note by way of the mistaken satisfaction of mortgage did not, and could not, have extinguished their rights under the note.

To support a negligence claim, the Vuus were required to show (a) the existence of a duty recognized by law requiring Boyd and All Real Estate to conform to a certain standard of conduct for the protection of others, including the Vuus; (b) a failure on the part of Boyd and All Real Estate to perform the duty; and (c) injury or damage proximately caused by such failure. See Lisanti v. City of Port Richey, 787 So.2d 36, 37 (Fla. 2d DCA 2001); Landrum v. John Doe Pit Digger, 696 So.2d 926, 928 (Fla. 2d DCA 1997). Because the Vuus’ right to recover under the note has not been extinguished, they have failed to carry their burden of showing that they have suffered any injury from the preparation of the satisfaction of the mortgage. Accordingly, we reverse the judgment in favor of the Vuus and remand for the entry of a judgment in favor of Boyd and All Real Estate.

Reversed and remanded.

DAVIS, J., and RAIDEN, MICHAEL E., Associate Judge, Concur.


author: LaROSE, Judge.

text:
    Eric Levan MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3102.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2010.
   LaROSE, Judge.

Eric Levan Martin appeals an order dismissing his motion for postconviction DNA testing. See Fla. R. Crim P. 3.853. The postconviction court properly found the motion facially insufficient. Accordingly, the postconviction court dismissed the motion with leave to file a facially sufficient motion within sixty days. This is not an appealable order. See Christner v. State, 984 So.2d 561, 562 (Fla. 2d DCA 2008) (noting that order dismissing rule 3.850 motion with leave to amend is nonfinal); Williams v. State, 884 So.2d 374, 375 (Fla. 2d DCA 2004) (explaining that the procedure of dismissing a pleading with leave to amend “renders the order nonfinal and nonappealable”).

Unfortunately, the postconviction court advised Mr. Martin that he could appeal the order to this court within thirty days. Mr. Martin did so.

We must dismiss this appeal because it stems from a nonappealable order. On remand, the postconviction court should amend its order to provide that it is not appealable at this time. The postconviction court should also give Mr. Martin sixty days in which to file a facially sufficient motion. See Herron v. State, 34 So.3d 206, 206-07 (Fla. 2d DCA 2010).

Dismissed and remanded.

KHOUZAM and BLACK, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    In the Interest of J.R.C., A.C., and B.C., Children. C.H.C., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D10-4116.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 2011.
    Jane H. Grossman of the Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Bernie McCabe, State Attorney, and Ronald S. Frankel, Assistant State Attorney, Clearwater, for Appellee.
   NORTHCUTT, Judge.

C.H.C., the mother of three minor children, challenges the circuit court’s decision to place the children in a permanent guardianship with an adult relative. See § 39.6221, Fla. Stat. (2009). We conclude that competent substantial evidence supported the circuit court’s ruling, and we affirm it without further discussion. However, the court’s order did not “[sjpecify the frequency and nature of visitation or contact between” the children and their mother, as mandated by statute. See § 39.6221(2)(c). Accordingly, we reverse on this basis and remand for the court to conform the order to this statutory requirement.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.


author: TORPY, J.

text:
    Marie MARION and Craig Tennant, Appellants, v. ORLANDO PAIN & MEDICAL REHABILITATION, etc., et al., Appellees.
    No. 5D06-4243.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 2011.
    Jerry H. Jeffery, Jr., Maitland, for Appellants.
    Donald N. Williams of the Law Office of Piercy J. Stakelum, P.A., Orlando, for Ap-pellees.
   ON MOTION FOR SANCTIONS

TORPY, J.

Appellees, Ralph Porto and Brian Burns, move for sanctions based upon an improper motion for rehearing directed to our per curiam, without opinion, disposition of this appeal.

This appeal challenged the dismissal of one count of a multi-count complaint. Suffice it to say that we determined that the trial court correctly dismissed the count, and that Appellant, Craig Tennant, had been offered ample opportunity to correct the defective pleading through several amendments. Although the facts of the case were somewhat novel, the issues of law were not. Our decision to dispose of the case without opinion was the product of our considered determination that no new or novel point of law was involved and that no further review would be available even if we were to write an opinion. In response to our decision, Appellant, through his counsel, filed his MOTION FOR REHEARING OR CERTIFICATION TO THE SUPREME COURT. The first two paragraphs in the motion state as follows:

1. Oh.
2. Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I cannot overcome my indignation engendered by this Honorable Court’s per curiam affir-mance of the lower court’s order. I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason. However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue. I assume that I failed in my obligation in the initial briefs.

Thereupon, counsel set forth what he labeled as facts. The statement of facts contained not a single record reference and many of the facts are unsupported by the record. For example, the opening sentence of the statement of “facts” says that Appellees are “both proven con artists ...,” yet the record bears no such proof. Nor does a scandalous description such as this have any place in a pleading of this nature.

Appellant’s counsel goes on:

6. In short, [Appellees] ran a con, using the (now, surprisingly, defunct) clinic as a shell. And now the Court seems to be saying this is OK in the Fifth District. If so, I have lived too long. (I am sorry — I am screaming again.)

In response, Appellees addressed the impropriety of Appellant’s motion in considerable detail and sought sanctions. Rather than withdraw the frivolous and non-compliant motion, Appellant pressed on, albeit with a somewhat more conciliatory tone. Appellant nevertheless delivered a “tit for tat” by demanding that Appel-lees’ counsel be caused to appear before the court to “explain in detail” his assertion that Appellant’s statement of facts was improper.

We have repeatedly admonished the bar regarding the impropriety of motions such as this. See Amador v. Walker, 862 So.2d 729 (Fla. 5th DCA 2003), and cases cited therein. Motions for rehearing are not to be used for the purpose of venting counsel’s frustrations with the form or substance of the court’s decision. Id. They are rarely, if ever, warranted when the decision is without opinion. See Snell v. State, 522 So.2d 407 (Fla. 5th DCA 1988) (absent a written opinion, motion for rehearing cannot direct court to matters overlooked).

In this motion, not only does counsel violate this admonition, he does so unabashedly — by admitting that it was his primary purpose in filing the motion. The motion itself completely fails to satisfy any of the requisites of a proper motion of this nature or of any other pleading filed by a professional lawyer for that matter. It fails to tell us what “fact” we overlooked. It contains assertions that have no support in the record, are scandalous and are legally irrelevant. The only “facts” that are relevant to an appeal from the dismissal of a complaint for failure to state a cause of action are those spelled out in the complaint itself. The motion asserts as a conclusion that our decision conflicts with other precedents but fails to give even a scintilla of analysis as to how our disposition of this case conflicts with any of these precedents. The request for “certification” neither identifies any question to be certified nor attempts to explain how any issue in the case could be characterized as one involving great public importance. In short, it is naked re-argument at best and an emotional tirade at worst, neither of which have any place in this Court.

Based upon the apparent violations of numerous rules of court and the rules governing the conduct of attorneys, counsel for Appellant, Jerry H. Jeffery, is directed to appear before this Court on February 17, 2011, at 11:30 a.m., to show cause why monetary or other sanctions should not be imposed pursuant to Florida Rule of Appellate Procedure 9.410(a) and (b), and section 57.105, Florida Statutes (2010). The Court reserves jurisdiction for this and other proper purposes.

MOTIONS DENIED; SHOW CAUSE ORDER ENTERED.

ORFINGER and JACOBUS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Terry HERC, Ricky Herc, and Jacob Herc, Appellee.
    No. 2D09-4516.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellees.
   WHATLEY, Judge.

The State of Florida appeals a circuit court order granting a motion to suppress filed by Terry, Ricky, and Jacob Here. The Hercs were charged in a twenty-nine count information with one count each of trafficking in illegal drugs and multiple counts of obtaining drugs from a physician by withholding information. The trial court granted the Hercs’ motion to suppress pharmacy records based on its finding that detectives improperly obtained the Hercs’ pharmacy records without first notifying the Hercs or obtaining a warrant as required by section 456.057, Florida Statutes (2008).

On appeal, the Hercs concede that the trial court did not have the benefit of several recent cases directly on point including State v. Tamulonis, 89 So.3d 524, 528 (Fla. 2d DCA 2010), and State v. Carter, 23 So.3d 798, 799 (Fla. 1st DCA 2009), which held that pursuant to section 893.07(4), Florida Statutes, law enforcement officers may obtain controlled substance records of pharmacies without notifying the patient or obtaining a warrant. See also State v. Shukitis, 60 So.3d 406, 408 (Fla. 2d DCA 2010); State v. Yutzy, 43 So.3d 910, 911 (Fla. 2d DCA 2010). We therefore reverse the order suppressing the pharmacy records of the Hercs.

Although the Hercs concede that detectives were not required to obtain their consent or a warrant before obtaining the pharmacy records, they argue that their consent and a warrant were necessary to obtain their physicians’ records pursuant to section 456.057(7). Section 456.057(7)(a) provides as follows:

Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

Section 456.057(6) defines such records as “reports and records relating to ... examination or treatment [of the patient.]” See Shukitis, 60 So.3d at 409. At issue in the present case is the testimony of Detective Fowler that, once he received the pharmacy records, he contacted the physicians’ offices and asked them if they were aware that the individual was seeing another doctor for a prescription of a controlled medication. If the answer was no, the detective would ask, “Well, knowing that they’ve seen one, would you have continued to prescribe them medications?” The trial court failed to address whether Detective Fowler’s testimony involved medical records as defined in section 456.057(6). We therefore remand this case for the trial court to determine whether the above statements are subject to suppression. See Shukitis, 60 So.3d at 409.

Accordingly, we reverse the trial court’s order suppressing the Hercs’ pharmacy records and remand the case for the trial court to determine whether the physicians’ statements to Detective Fowler should be suppressed.

Reversed and remanded with directions.

NORTHCUTT and MORRIS, JJ, Concur.


text:
    In re Petition of Jane DOE for a Judicial of Pregnancy. Jane Doe, Appellant.
    No. 2D11-106.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.
    Jane Doe, pro se.
   SILBERMAN, Judge.

Jane Doe, a minor, challenges the final order dismissing her petition for judicial waiver of parental notice of termination of pregnancy pursuant to section 390.01114(4)(c), Florida Statutes (2010). The trial court determined that the minor did not meet her burden of proof. Because competent, substantial evidence supports the trial court’s findings, we affirm the trial court’s order.

Generally, a physician must give a minor’s parent or legal guardian notice prior to the termination of a minor’s pregnancy. § 390.01114(3). The statute provides for judicial waiver of the notice requirement upon proof of certain statutory grounds. § 390.01114(4). Here, the minor based her petition on the statutory ground that she was “sufficiently mature to decide whether to terminate her pregnancy.” § 390.01114(4)(c). The minor has the burden to prove by clear and convincing evidence that she is sufficiently mature. In re Doe, 973 So.2d 548, 550-51 (Fla. 2d DCA 2008); In re Doe, 932 So.2d 278, 285 (Fla. 2d DCA 2005).

The trial court conducted a hearing and, pursuant to the statutory requirements, issued a detailed order with specific factual findings and legal conclusions. See § 390.01114(4)(e). The trial court found that the minor did not show that she thoroughly reviewed the other options available to her or that she had appropriately considered the risks involved. Significantly, the trial court made specific findings and expressed particular concern regarding the minor’s demeanor, and the court considered that factor important in this case. Cf. In re Doe, 932 So.2d at 285 (reversing the dismissal of the minor’s petition and recognizing that the appellate record could not portray the minor’s demeanor but that the trial court did not suggest that her “demeanor had any bearing on its consideration”); see also In re Doe, 36 So.3d 164, 165 (Fla. 2d DCA 2010) (reversing the dismissal of the petition and observing that the trial court did not mention the minor’s demeanor). Although some of the evidence was indicative of maturity, the trial court’s findings, including those regarding the minor’s demeanor, support its determination that the minor did not prove that she was sufficiently mature to decide whether to terminate her pregnancy.

Affirmed.

NORTHCUTT and BLACK, JJ„ Concur.


text:
    Anthony J. FRANCEL, Appellant, v. GRIES INVESTMENT FUND, LLC, a Florida limited liability company, Appellee.
    No. 2D09-4591.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2011.
    Anthony J. Francel, pro se.
    Daniel P. Dietrich and William J. Schifi-no of Williams Schifino Mangione & Steady, P.A., Tampa, for Appellee.
   KELLY, Judge.

Anthony J. Francel appeals from the final summary judgment entered in favor of Gries Investment Fund, LLC, in an action for breach of a stock buyback agreement. Because Francel’s affidavit filed in opposition to Gries’s motion for summary judgment raised genuine issues of material fact, the trial court erred when it granted Gries’s motion. Accordingly, we reverse.

Gries sued Francel for breach of a stock buyback agreement. According to Gries, Francel executed a stock buyback agreement in which he agreed to purchase from Gries 50,000 shares of the common stock of Alternative Construction Technologies, Inc., on or before a certain date. When Francel did not buy back the shares, Gries sued him for breach of contract. In his answer, Francel raised the defense of usury and also alleged that he had discharged his obligation under the contract. These defenses, which are admittedly not well spelled out in Francel’s answer, are more fully developed in his affidavit in response to Gries’s motion for summary judgment and in Francel’s motion for summary judgment and the documents filed in connection with that motion.

With regard to discharge, in his filings Francel contends the buyback agreement contains a provision specifying the remedy for failure to repurchase the stock by the closing date, and he contends he has fulfilled his obligation under that provision. Specifically, he points to the paragraph titled “Failure to Complete Stock Buyback” which states that if he does not complete the repurchase by the closing date, he is “to deliver to Seller all stock interests owned by [Francel], their family members, or related entities within 5 business days of the Closing Date.” In his affidavit Francel states he has complied with this provision.

Francel argues in the alternative that the stock buyback agreement was one of two separate but contemporaneous transactions, the second transaction being his sale of the 50,000 shares of stock, valued at $200,000, to Gries for $50,000. Francel contends that the stock sale and buyback agreements are nothing more than an attempt to disguise a usurious loan, particularly if, as Gries contends, the stock buyback agreement unconditionally obligated him to repurchase the stock. See, e.g., Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla. 3d DCA 1977).

Francel argues, and we agree, that the trial court erred in granting summary judgment because Gries never factually refuted these affirmative defenses or established that they were legally insufficient. Consequently, Gries did not establish its entitlement to summary judgment. See,

e.g., Morroni v. Household Fin. Corp., III, 903 So.2d 311 (Fla. 2d DCA 2005) (explaining that a party seeking summary judgment must either factually refute the other party’s affirmative defenses or establish that they are legally insufficient); Manassas Inv., Inc. v. O’Hanrahan, 817 So.2d 1080 (Fla. 2d DCA 2002) (holding that in order for the movant to prevail on a summary judgment motion, the movant must either factually refute the affirmative defenses or establish that they are legally insufficient). In evaluating the sufficiency of Francel’s affirmative defenses, the trial court should have considered Francel’s affidavit and accompanying documents which alleged facts in support of his affirmative defenses. See Fla. R. Civ. P. 1.510(c).

Accordingly, we reverse the trial court’s order of summary judgment and remand for further proceedings.

WHATLEY and SILBERMAN, JJ., Concur.


author: PER CURIAM.

text:
    Todd NORWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2538.
    District Court of Appeal of Florida, Second District.
    March 16, 2011.
    Todd Norwood, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

      . Judge Davis has been substituted for Senior Judge Carolyn K. Fulmer, who was on the original Norwood panel.

   PER CURIAM.

Affirmed. See Walton v. State, 58 So.3d 887 (Fla. 2d DCA2011).

DAVIS, KELLY, and LaROSE, JJ„ Concur.