text:
    UNIVERSITY OF MIAMI and Gallagher Bassett Services, Appellants, v. Venda WEST, Appellee.
    No. 1D08-2996.
    District Court of Appeal of Florida, First District.
    April 20, 2009.
    Toni L. Villaverde of Toni L. Villaverde, PLLC, South Miami, for Appellants.
    Edward Schroll, Miami, for Appellee.
   PER CURIAM.

The Employer/Carrier (E/C) appeals the Judge of Compensation Claims’ (JCC) award of medical and indemnity benefits. Because the order contains no ultimate findings of fact or conclusions of law, we reverse.

Section 440.25(4)(e), Florida Statutes, requires the JCC only to “set forth the findings of ultimate facts and the mandate; and the order need not include any other reason or justification for such mandate.” It is necessary, however, for the JCC to make sufficient findings of ultimate facts to permit appellate review. See Lee County Parks & Recreation/Lee County Bd. of County Com’rs v. Fifer, 996 So.2d 229, 232 (Fla. 1st DCA 2008) (reversing the JCC’s award of indemnity benefits because it was “unclear whether the JCC considered the merits” of the claim).

Here, the JCC’s “factual findings” consisted of relaying Claimant’s testimony. No medical testimony was even mentioned. Additionally, an ambiguity was created when the JCC sustained the E/C’s objection to Claimant’s testimony regarding the need for a plastic surgeon, which the E/C argued was a new claim, while simultaneously advising the parties that the issue was a medical one, and that he would review the medical testimony and be guided accordingly. The JCC’s order makes no finding as to which argument was accepted.

Another issue before the JCC was a claim for temporary partial disability benefits. Included in the E/C’s defenses was that the benefit was not due because Claimant was terminated for cause, and there was no medical evidence to support an award of temporary partial disability benefits. The JCC hinted at his ultimate finding, at least in regard to the defense of termination for cause, when he found “Ms. West’s indication that any absences deemed ‘excessive’ would be the result of her compensable accident appears well founded.” The JCC did not, however, reference any medical evidence to support the award. Because the JCC included an award of temporary partial disability benefits in the decretal portion of the order, it appears the JCC rejected the E/C’s defenses.

This court will not “evaluate and weigh the evidence produced below.” Allen v. Protel, Inc., 852 So.2d 916, 921 (Fla. 1st DCA 2003) (reversing and remanding “the case for further consistent proceedings,” where the JCC failed to explain why he rejected the expert medical advisor’s opinion). Here, the JCC’s failure to make ultimate findings of fact precludes meaningful appellate review.

Accordingly, this matter is REVERSED and REMANDED for proceedings consistent with this opinion.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    Raymond A. TUBBS and Michael L. Tubbs, Appellants, v. Lisa HUDEC and Richard Hudec, Appellees.
    No. 2D08-3477.
    District Court of Appeal of Florida, Second District.
    April 22, 2009.

      Warwick R. Furr, II, of Warwick R. Furr, II, PA.., Avon Park, for Appellants.
    Morris Weinberg, Jr., Marcos E. Has-bun, and Nathan M. Berman of Zucker-man Spaeder LLP, Tampa, for Appellees.
   FULMER, Judge.

Raymond A. Tubbs and Michael L. Tubbs (“the Shareholders”) appeal an order granting Lisa Hudec and Richard Hu-dec’s motion to dismiss the Shareholders’ complaints for breaches of unconditional guarantees of payments on promissory notes. The trial court concluded that the agreement which gave rise to the guarantees required the parties to submit their claims to arbitration. The order on appeal is not a final order because it merely grants the Hudecs’ motion to dismiss, see Hayward & Assocs. v. Hoffman, 793 So.2d 89, 91 (Fla. 2d DCA 2001), but it is appeal-able because it determines a party’s right to arbitration, see Fla. RApp. P. 9.130(a)(3)(C)(iv). We disagree that the dispute is governed by the arbitration clause in the agreement, and we reverse and remand for further proceedings.

In March 2006, RC Highlands Holdings of Florida, Inc. (“the Purchaser”), a business owned by the Hudecs, purchased stock in two businesses owned by the Shareholders for a total of $16,000,000. The Purchaser paid the Shareholders $14,000,000 in cash and gave promissory notes for the remaining $2,000,000. The Purchaser and the Shareholders entered into a stock purchase agreement, which required the Purchaser to deliver to each of the Shareholders a promissory note in the amount of $1,000,000. Pursuant to the agreement, the Purchaser executed two promissory notes, each for $1,000,000, to the Shareholders. The promissory notes did not contain any personal guarantees by the Hudecs.

A year later, at the request of the Purchaser and the Hudecs, the Shareholders consented to restructuring the transaction as an asset purchase rather than as a stock purchase and to lowering the interest rate on the promissory notes. In exchange, the original promissory notes were cancelled and the Purchaser executed two replacement promissory notes to the Shareholders, each in the amount of $1,000,000. The first replacement note stated that the Purchaser promised to pay $1,000,000 to Raymond Tubbs, and the second replacement note stated that the Purchaser promised to pay $1,000,000 to Michael L. Tubbs. Each note contained an unconditional guarantee of payment, personally signed by both Lisa and Richard Hudec.

In March 2008, Richard Hudec informed Michael Tubbs that the Purchaser and the Hudecs were not going to pay the money due on the promissory notes. In April 2008, the Shareholders each filed an action against the Purchaser, Lisa Hudec, and Richard Hudec for anticipatory breach of the promissory notes and the unconditional guarantees. The Purchaser and the Hu-decs moved to dismiss the complaints on the basis that the claims are subject to the mandatory arbitration provision in the stock purchase agreement between the Purchaser and the Shareholders. The Shareholders each filed motions for summary judgment.

In May 2007, the Shareholders each filed amended complaints against the Hu-decs, alleging claims for breach of the unconditional guarantees of payment. The amended complaints did not list the Purchaser as a defendant. The trial court consolidated the two amended complaints. The Hudecs again filed a motion to dismiss the Shareholders’ complaints on the basis that the claims are subject to the mandatory arbitration provision in the stock purchase agreement. After a hearing, the trial court granted the Hudecs’ motion to dismiss by written order, concluding that “the original agreement entered into by the parties expresses a clear intent to settle disputes by arbitration.” The trial court dismissed the Shareholders’ motions for summary judgment as moot.

On appeal, the Shareholders raise three issues. We conclude, without further comment, that two of the issues are without merit. However, the remaining issue requires reversal.

The Shareholders claim that there is no provision within the stock purchase agreement that requires arbitration of the Shareholders’ claims on the unconditional guarantees of payment. They argue that the arbitration provision in the agreement applies only to indemnification claims and that a suit to enforce an unconditional guarantee is not a claim for indemnity.

“[Arbitration agreements are a favored means of dispute resolution. Doubts concerning the scope of arbitration clauses should generally be resolved in favor of arbitration.” CSE, Inc. v. Barron, 620 So.2d 808, 809 (Fla. 2d DCA 1993) (citation omitted). “The trend is to liberally construe an arbitrator’s authority if the arbitration clause is sufficiently broad.” Stinson-Head, Inc. v. City of Sanibel, 661 So.2d 119, 120 (Fla. 2d DCA 1995). However, no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate. United Vacation Network, Inc. v. Tahiri, 987 So.2d 244, 246 (Fla. 2d DCA 2008). The parties' intent regarding arbitration is discerned from the language of the agreement containing the arbitration clause. Id. We review a trial court’s construction of an arbitration provision de novo. Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630, 632 (Fla. 2d DCA 2008).

Section 6.4 of article VI of the stock purchase agreement is titled “Procedure for Indemnification Claims.” Section 6.4(a) provides in relevant part:

If the Purchaser believes that a matter has occurred that entitled it to indemnification under Section 6.2 hereof (other than matters covered by subsection (b) below) or the Shareholders believe that a matter has occurred that entitles them to indemnification under Section 6.3 hereof (other than matters covered by subsection (b) below), the Purchaser or the Shareholders, as the case may be (the “Indemnified Party”), shall give prompt written notice to the party or parties against whom indemnification is sought (each of whom is referred to herein as an “Indemnifying Party”) describing such matter in reasonable detail. ...

(Emphasis added.) Paragraph 6.4(a) goes on to describe a notice and negotiation process, after which, if the negotiations have been unsuccessful, “any such dispute shall be submitted to binding arbitration in Tampa, Florida to a member of the American Arbitration Association mutually appointed by the Indemnified and Indemnifying Parties ... who shall promptly arbitrate such dispute.”

Sections 6.2 and 6.3 describe the indemnification obligations of both the Shareholders and the Purchaser. Section 6.3 is titled “Indemnification Obligation of Purchaser” and provides that the Purchaser shall “reimburse, indemnify and hold harmless the Shareholders and their respective successors and assigns (an ‘Indemnified Shareholder Party’) against and in respect of’ several types of losses and actions listed. The Hudecs argue that the Shareholders’ claims against the Hudecs fall under section 6.3(a)(ii) of the agreement, which provides that the Purchaser shall indemnify for any and all losses incurred or suffered by the Shareholders resulting from, relating to, or arising out of “any misrepresentation, breach of warranty or non-fulfillment of any agreement or covenant, on the part of the Purchaser under this Agreement.” The Hudecs argue that section 6.3(a)(ii) redefines the traditional meaning of indemnification.

It appears from the general language of the order on appeal that the trial court read the arbitration provision in section 6.4 to require arbitration of all disputes, rather than indemnification claims specifically. However, the agreement clearly states that the arbitration provision — which is found in an article that deals almost exclusively with indemnification — applies only to claims for indemnification. In fact, sections 6.4(b) and 6.6 further indicate that the arbitration provision applies only to indemnification claims. Section 6.4(b) provides the procedure to be followed when a claim is made by a third party against the indemnifying party, and section 6.6 states that the indemnification rights of the parties under article VI are independent of and in addition to any rights and remedies the parties may have at law or in equity.

As the Shareholders argue on appeal, their claims against the Hudecs on the unconditional guarantees of payment are not arbitrable disputes for indemnification but are simply first-party claims against the Hudecs for payment. The arbitration clause applies to any claims for indemnification caused by the Purchaser’s failure to fulfill an obligation of an agreement related to the stock purchase agreement, but in this case the Shareholders are not seeking indemnification or reimbursement from the Purchaser, which is EC Highlands. Instead, they are seeking payment from the Hudecs on unconditional guarantees personally executed by the Hudecs. The arbitration clause in the stock purchase agreement does not cover this type of claim. See Tahiri, 987 So.2d at 246 (holding that trial court properly denied motion to compel arbitration of claims for fraud and unfair and deceptive trade practices because arbitration clause in agreement only applied to indemnification claims and there were no other arbitration clauses in agreement). Therefore, the trial court erred in granting the Hudecs’ motion to dismiss the Shareholders’ amended complaints.

Accordingly, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and remanded.

DAVIS and WALLACE, JJ., Concur.


author: TAYLOR, J.

text:
    T.G., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D08-2198.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.
    Kevin G. Thomas, Sunny Isles Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Christy Fisher, Assistant Attorney General, Fort Lauderdale, for ap-pellee.
   TAYLOR, J.

The mother, T.G., appeals the trial court’s final judgment terminating her parental rights to three of her minor children, U.L., K.L., and U.G. The court based its judgment primarily on the mother’s failure to complete her reunification case plan and her abandonment of the children while they were in foster care. We affirm on all issues raised in this appeal, but write to address the abandonment issue.

Section 39.806(l)(b), Florida Statutes (2006), authorizes termination of parental rights for abandonment. “Abandonment” is defined in section 39.01(1), Florida Statutes (2006). Under the statutory definition, a child is abandoned when the parent “while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations.” The statute goes on to state that “[i]f the efforts of the parent ... to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.”

To terminate parental rights because of abandonment, there must be clear and convincing evidence. See In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995) (citing Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and In re R.W., 495 So.2d 133, 135 (Fla.1986)). In this case, the record shows substantial competent evidence to support the trial judge’s finding by clear and convincing evidence that the mother abandoned the children when she failed to visit them for over a year prior to the final hearing. Evidence revealed that over the nearly ten-year period that the children were under protective supervision, the mother visited the children sporadically, and that after June 4, 2006, she stopped visiting them altogether. The record further shows that any efforts she made to communicate with the children were marginal at best. We note that the record contained conflicting testimony about difficulties the mother said she encountered in trying to arrange visits with the children. However, we cannot reweigh the testimony and evidence or substitute our judgment for that of the trial judge. Instead, we must uphold the trial court’s finding “ ‘[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.’ ” E.A.W., 658 So.2d at 967 (quoting Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993)).

In re L.R.R., 455 So.2d 598 (Fla. 5th DCA 1984), involved a mother who had failed to visit her children between December 1981 and August 1983, even though under the terms of her performance agreement she was to visit with them monthly. The trial court terminated her parental rights. The fifth district affirmed, stating that “the overriding issue here concerns abandonment or Russell’s lack of a genuine interest, as exhibited over almost a two-year period, in her children.” Id. at 600. Similarly, in In re K.A.F., 442 So.2d 365, 366 (Fla. 5th DCA 1983), the court upheld a finding of abandonment where the mother had failed to communicate with or visit her child, who was in foster care, for over eighteen months.

We note that Mississippi enacted a statute authorizing termination of parental rights in any case where a parent has made no contact with a child three years of age or older for a period of one year. See In re A.M.A., 986 So.2d 999 (Miss.Ct.App. 2007) (citing Miss. Code Ann. § 93-15-103(1)-(3) (Rev. 2004)), cert. denied, 987 So.2d 451 (Miss.2008). Missouri has an even stricter statute, providing that a child has been abandoned if, at the time of the petition, the parent has left a child over one year of age for a period of greater than six months with no provision for pa-rental support and without making arrangements to visit or communicate with the child, without good cause, even though the parent has been able to do so. See In re J.W., 11 S.W.3d 699, 703 (Mo.Ct.App. 1999) (citing Mo. Ann. Stat. § 211.447.2(1)(b) (1997)). In J.W., the court affirmed a termination under the Missouri statute, even though there had not been an uninterrupted six-month period without visitation. Id. at 704. The court affirmed because there had been multiple periods of nearly six months without visitation. Id. In this case, where the lack of contact exceeded one year, the trial court properly found that the mother abandoned the minor children pursuant to section 39.806(1)(b), Florida Statutes.

Affirmed.

HAZOURI and MAY, JJ., concur.

      . The mother’s three younger children were returned to her in 2005. Protective supervision over these younger children was thereafter terminated by court order.

        . The definition of abandonment was amended in section 39.01(1), Florida Statutes, effective July 1, 2008. The amended subsection specifies that a parent must establish or maintain a substantial and positive relationship with the child, which "includes, but is not limited to, frequent and regular contact with the child “through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities.” It goes on to state that "[m]arginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child.” § 39.01(1), Fla. Stat. (2008).

      . The adjudicatory hearings on the termination petition spanned three dates: July 26, 2007, October 5, 2007, and November 20, 2007.


author: WELLS, J.

text:
    Hector Alfredo UBILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1049.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Hector Alfredo Ubilla, in proper person.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, J.

Hector Ubilla appeals from concurrent sentences as a violent career criminal following convictions for burglary of an unoccupied structure (count I) and grand theft (count II) in 1999. See § 775.084(l)(c), Fla. Stat. (1997). For the following reasons, we affirm the sentence imposed for the burglary conviction, but reverse the sentence imposed for grand theft.

Following a stipulation by Ubilla that he qualified for sentencing as a violent career criminal under section 775.084(l)(c) of the Florida Statutes, Ubilla was sentenced to two concurrent fifteen year, ten year minimum mandatory sentences as a violent career criminal in this case. These sentences were affirmed by this court.

Ubilla subsequently filed a motion to correct illegal sentence claiming that his attorney had mistakenly stipulated to his qualification as a violent career criminal, and that his prior convictions did not meet the criteria set forth in section 775.084. At a hearing on this motion, the State introduced evidence of five prior convictions for either attempted burglary or burglary and proved that Ubilla had been released from prison within five years of the conviction for which he was being sentenced. Although Ubilla argued that the burglaries for which he had previously been convicted were of unoccupied structures and thus were not forcible felonies for which a section 775.084 sentence could be imposed, and that grand theft was not a crime for which a violent career criminal sentence could be imposed, the trial court again sentenced him to two concurrent fifteen year, ten year minimum mandatory violent career criminal sentences. No appeal was prosecuted from this sentence.

Undaunted, Ubilla filed additional motions to correct his sentences, this time claiming that a prior conviction for attempted burglary could not be utilized as a qualifying predicate offense for a violent career sentence. Although these motions were denied, they were reversed on appeal following the State’s confession of error. See Ubilla v. State, 922 So.2d 456 (Fla. 3d DCA 2006).

On remand, the State again introduced evidence of four prior convictions for burglary of either unoccupied structures or of a conveyance. Two of these were treated as a single conviction since the sentences were imposed on the same day. Although these three convictions for burglary appeared to qualify Ubilla for a violent career criminal sentence, he argued that he did not qualify because neither the burglary for which he was being sentenced, nor those being used to habitualize him, involved the use or threat of physical force or violence so as to qualify him for habitu-alization under section 775.084(l)(c). For yet a third time, the same concurrent fifteen year, ten year minimum sentences have been imposed, bringing us to the current appeal.

While we agree that the sentence imposed for the burglary conviction is appropriate, the sentence for the grand theft conviction is not. Ubilla’s argument that burglary of an unoccupied dwelling does not constitute a forcible felony that will support his sentence as a “violent career criminal” under section 775.084 of the Florida Statutes has been repeatedly rejected by this Court. See Hernandez v. State, 960 So.2d 816, 817 (Fla. 3d DCA 2007) (citing Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002)); Diaz v. State, 837 So.2d 436 (Fla. 3d DCA 2002); Rodriguez v. State, 826 So.2d 464 (Fla. 3d DCA 2002). In a case strikingly similar to this one, this Court confirmed that convictions for burglary of an unoccupied structure qualify for sentencing as a violent career criminal when the burglary at issue is either the primary felony for which sentence is being imposed or a qualifying predicate offense:

Defendant-appellant Rodriguez was convicted of burglary of an unoccupied structure and other offenses. On the burglary count he was sentenced as a violent career criminal.
In his motion the defendant contends that he does not actually qualify as a violent career criminal. He reaches that conclusion because his three predicate offenses were all prior convictions for burglary of an unoccupied structure. He contends that these offenses do not qualify him as a violent career criminal.
The violent career criminal statute provides, in pertinent part, that qualifying offenses include “[a]ny forcible felony, as described in s. 776.08.” § 775.084(l)(c)l.a., Fla. Stat. (Supp. 1998).
Section 776.08, Florida Statutes (1997), provides:
776.08 Forcible felony. — “Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
(Emphasis added).
Because burglary is an enumerated forcible felony, it follows that the defendant qualifies under the statute. Section 776.08 does not distinguish between burglary of an occupied or unoccupied structure or conveyance. See State v. Emmund, 698 So.2d 1318, 1319 & n. 2. (Fla. 3d DCA 1997).
The defendant points out that the final portion of section 776.08 refers to “any other felony which involves the use or threat of physical force or violence against any individual.” He contends that the phrase “involves the use or threat of physical force or violence against any individual” must be read as a limitation on all of the crimes listed in the forcible felony statute. Thus, under the defendant’s reading, a burglary would be a forcible felony only if in the particular circumstances of the crime, there had been the use or threat of physical force or violence against an individual.
We do not agree with that reading of the statute. As we view the matter, the definition includes all enumerated felonies, plus any additional felony which involves the use or threat of physical force or violence against an individual. See Hudson v. State, 800 So.2d 627, 628-30 (Fla. 3d DCA 2001) (on motion for rehearing granted) (analyzing the non-enumerated felony of shooting or throwing a deadly missile in violation of section 790.19, Florida Statutes).
Affirmed.

Rodriguez, 826 So.2d at 465 (footnote omitted).

Ubilla’s violent career criminal sentence for burglary of an unoccupied structure is, therefore, affirmed.

However, the violent career criminal sentence imposed on his theft conviction must be reversed because theft does not qualify as either a predicate offense or as a primary offense for which such a sentence may be imposed. See § 775.084(l)(c)l.a.-g., Fla. Stat. (1997) (listing the primary and predicate qualifying offenses as aggravated stalking, aggravated child abuse, aggravated abuse of an elderly person; lewd, lascivious, or indecent conduct; escape; felony violation of chapter 790 involving use or possession of a firearm; and a forcible felony under section 776.08); § 776.08, Fla. Stat. (1997) (defining a forcible felony as “treason; murder; manslaughter; sexual battery; caijacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual”). Since theft is not listed in section 775.084(l)(c) as either a primary or a predicate offense, and since theft does not by definition involve the use or threat of physical force or violence, it does not qualify as either a primary or predicate qualifying offense for violent career criminal enhancement under section 775.084. See § 812.014(l)(a)-(b), Fla. Stat. (1997) (“A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently: (a) [d]eprive the other of a right to the property or a benefit from the property [or] (b) [appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.”).

Accordingly, Ubilla’s fifteen year, ten year minimum mandatory sentence for burglary is affirmed; his violent career criminal sentence for theft is reversed and remanded to the court below for re-sentencing on this count alone.


author: PER CURIAM.

text:
    D.P., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-839.
    District Court of Appeal of Florida, Fifth District.
    April 24, 2009.
    Robert Wesley, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

We granted by unpublished order the petition for writ of habeas corpus filed by D.P., a juvenile, challenging his continued secure detention, based upon an allegedly improperly scored Risk Assessment Instrument (RAI). We now write to explain the order.

D.P. is sixteen years of age and was charged with the offense of carrying a concealed firearm. Under section 3 of the RAI, he was given ten points for a third-degree felony involving the use and possession of a firearm. He was also scored an additional three points under that same section for the aggravating circumstance of illegal possession of a firearm. This resulted in a score exceeding the twelve points necessary for secure detention. Because the firearm possession was already factored into the initial scoring of ten points, it could not be used again without impermissibly double scoring the same conduct already accounted for in the RAI. P.A.J. v. Gnat, 684 So.2d 310 (Fla. 1st DCA 1996); D.G. v. Miles, 872 So.2d 343 (Fla. 2d DCA 2004). Consequently, D.P. was ineligible for secure detention because he scored less than twelve points.

PETITION FOR HABEAS CORPUS GRANTED.

MONACO, EVANDER and COHEN, JJ., concur.


author: DAVIS, Judge.

text:
    Diana K. THAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1331.
    District Court of Appeal of Florida, Second District.
    April 29, 2009.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Diana K. Thar appeals her judgment and sentence for grand theft specifically challenging the trial court’s order setting restitution and order denying her motion for rehearing on the order setting restitution. Because there is nothing in the record to show that Thar received actual notice of the restitution hearing and because the trial court failed to allow her to testify to that effect at the hearing on her motion for rehearing, we reverse the order of restitution and remand for the trial court to reconsider the issue of restitution after conducting a properly noticed evidentiary hearing at which Thar has an opportunity to be heard.

Thar entered a plea of no contest to the charge of grand theft. In imposing sentence, the trial court placed Thar on probation and reserved the right to set restitution at a later date. A restitution hearing was held on January 28, 2008. Thar was not present at this hearing, but her counsel, who was present, informed the court that he had left a message at Thar’s last known telephone number, adr vising her of the hearing. The State presented evidence on the amount of restitution, and the trial court ruled that Thar’s failure to appear constituted a default and that Thar had waived her opportunity to attend the restitution hearing and to contest the imposition of the restitution order. The trial court then orally imposed restitution in the amount of $1655. The amount was noted on the minutes from the hearing and signed by the judge.

On February 18, 2008, Thar moved for a rehearing on the restitution amount. Thar’s written motion indicated that Thar’s counsel had received notice of the hearing but that he had not forwarded that notice to her by mail because counsel did not have a current address for Thar. The motion further stated that counsel had left two telephone messages regarding the hearing at a number he had previously used to reach Thar but that Thar “contaet-ed the undersigned attorney after the restitution hearing had been concluded and advised that she did not receive notice of the hearing since the telephone number was no longer hers.”

On February 20, 2008, the trial court conducted a hearing on the motion for rehearing. The trial court asked defense counsel if he had any evidence that the telephone number no longer belonged to Thar. When defense counsel replied that Thar could testify to that fact, the trial court indicated that it would not accept her testimony but wanted “independent proof.” The court then denied the motion. This denial was also noted on the minutes for the hearing and signed by the judge.

“[Ujnless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.” Baker v. State, 979 So.2d 453, 455 (Fla. 2d DCA 2008). Such a waiver “may be express, or it may be implied from the defendant’s voluntary absence.” Id.

In the instant case, the State presented no evidence that Thar voluntarily waived her presence at the hearing. This combined with the trial court’s refusal to allow Thar to testify at the hearing on her motion for rehearing left the record silent on the issue of the voluntariness of her failure to appear. Furthermore, if the trial court was going to rely on the probationary requirement that Thar notify the State about her changes in address and telephone number, sworn evidence to that effect should have been presented. See C.Y. v. State, 989 So.2d 1235 (Fla. 4th DCA 2008).

Accordingly, it was error for the trial court to find that Thar had waived her presence at the hearing and to set a restitution amount without allowing her the opportunity to be heard. We reverse the order of restitution and remand for the trial court to hold a new restitution hearing with proper notice to Thar.

Reversed and remanded.

SILBERMAN, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . While neither party raises issue with the practice of judges signing minutes rather than formally rendering orders, we note that a trial court’s use of and reliance on such documents as rendered orders is a practice this court does not encourage. Cf. Woods v. State, 987 So.2d 669 (Fla. 2d DCA 2007); Braswell v. State, 804 So.2d 523 (Fla. 2d DCA 2001); Monroe v. State, 760 So.2d 289 (Fla. 2d DCA 2000); Peterson v. State, 730 So.2d 830 (Fla. 2d DCA 1999).


author: ALTENBERND, Judge.

text:
    Angel VIDAURRE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3199.
    District Court of Appeal of Florida, Second District.
    April 29, 2009.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Angel J. Vidaurre appeals an order revoking his community control for three separate offenses and the three concurrent sentences imposed in connection with that revocation. We affirm the order revoking his community control. We also affirm the sentences for unlawful sexual activity with a minor and possession of a firearm by a convicted felon. We reverse the sentence for possession of cocaine because, as the State correctly concedes, Mr. Vidaurre’s term of probation had expired long before he was alleged to have violated his probation as to that third-degree felony.

In 1999, the State charged Mr. Vidaurre by information with two second-degree felonies, unlawful sexual activity with a minor and possession of a firearm by a convicted felon, and with one third-degree felony, possession of cocaine. On June 26, 2001, Mr. Vidaurre entered a no contest plea to all three offenses. He was sentenced to ten years’ probation for the second-degree felonies and to five years’ probation for the offense of possession of cocaine. He was thereafter found to have violated the terms of his probation four times, and his probation was continued after each violation.

On September 25, 2007, an affidavit was filed alleging that Mr. Vidaurre had violated his probation a fifth time. On September 28, 2007, the trial court found that Mr. Vidaurre violated his probation and sentenced him to two years’ community control. The order of community control purported to apply to all three offenses even though the term of probation for the offense of possession of cocaine had expired in June 2006. Thereafter, on May 16, 2008, he was found to have violated his community control and was sentenced to three concurrent terms of imprisonment for eighty-four months.

“A violation of probation must be set in motion prior to the termination of the period of probation.” Jones v. State, 954 So.2d 675, 676 (Fla. 4th DCA 2007); see also § 948.04(2), Fla. Stat. (2001); State v. Wimberly, 574 So.2d 1216, 1217 (Fla. 2d DCA 1991) (“A trial court lacks jurisdiction to revoke probation for violations which occur during the period of probation unless the revocation process is set in motion during the probationary period.”). Here, in light of his scoresheet, Mr. Vidaurre’s probationary term could have been longer than five years, but it ended in June 2006 because the trial court continued his probationary term instead of extending it. Since the next violation of probation was not set in motion before the period of probation ended, the trial court lacked jurisdiction to find Mr. Vidaurre in violation of his probation on September 28, 2007. See Jones, 954 So.2d at 676. The eighty-four month terms of imprisonment for the other two offenses are substantial downward departure sentences and are unaffected by this error.

Affirmed in part; reversed in part; and remanded.

DAVIS and SILBERMAN, JJ., Concur.


text:
    Wallace C. JONES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-869.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Rehearing Denied June 1, 2009.
    Wallace C. Jones, Jr., in proper person, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

Affirmed. See Benelhocine v. State, 717 So.2d 104 (Fla. 2d DCA 1998).


author: ROTHENBERG, J.

text:
    BRIVIS ENTERPRISES, INC., and OllieRogers Too, Inc., Appellants, v. Teresita VON PLINSKI, as Personal Representative of the Estate of David Garcia, and all survivors, Appellee.
    No. 3D08-1299.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Michael A. Vandetty, Miami, for appellants.
    Law Office of Robert S. Glazier and Robert S. Glazier, Miami; Alvarez Law Firm and Alex Alvarez, Coral Gables, for appellee.
    Before RAMIREZ, WELLS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendants, Brivis Enterprises, Inc. (“Brivis”) and OllieRogers Too, Inc. (“Ol-lieRogers”), appeal the denial of their second amended motion to set aside default, following a trial on damages and entry of a final judgment. We affirm.

On May 5, 2006, the plaintiff, Teresita Von Plinski, etc., filed a wrongful death action against OllieRogers and Brivis, whose principal and registered agent is Roger Farrell. After several failed attempts at serving the summons and complaint at the registered office, on May 26, 2006, the process server delivered the summons and complaint to the business address of the two corporate defendants, leaving the documents with an employee. On June 28, 2006, the plaintiff filed a motion for default, and on July 19, 2006, the clerk of the court entered a default against the defendants.

On July 24, 2006, the defendants filed an answer and affirmative defenses. The following day, the plaintiffs counsel notified defendants’ counsel that a default had been entered, and requested that defendants’ counsel contact him to discuss the matter. After not hearing from defendants’ counsel, on August 7, 2006, plaintiffs counsel once again wrote the defendants’ counsel, offering to discuss the case with him.

On August 11, 2006, the defendants moved to set aside the default on the basis of excusable neglect, and in support, submitted Farrell’s affidavit, averring that the summons and complaint were served on his son at the registered office, which happens to be Farrell’s home, but that his son did not tell him of the delivery until July 15, 2006. On January 17, 2007, the defendants filed a second amended motion to set aside default, stating that the process server served both defendants at their business, by leaving the summons and complaint with an individual who is an employee of OllieRogers, but not of Brivis. In support of the second amended motion, the defendants submitted Farrell’s revised affidavit, averring that the complaint was served on an employee of OllieRogers.

On March 26, 2007, the trial court conducted an evidentiary hearing on the defendants’ second amended motion to set aside default. At the evidentiary hearing, Farrell testified that he was in Port St. Lucie when the complaint and summons were served on May 26, 2006; he was hospitalized in Port St. Lucie until May 29, 2006; the employee did not tell him that a complaint and summons had been delivered; about seven weeks after the complaint and summons were served, he found it on a “work table” under a pile of mail, and he immediately contacted his attorney; he had not been in St. Vincent recently; when he signed the first affidavit, he thought that the affidavit pertained to a different lawsuit; and he failed to answer the complaint due to his illness.

The trial court denied the defendants’ second amended motion to set aside default and to quash service of process, finding that Farrell’s testimony was “unworthy of belief.” Brivis appealed the denial of the motion to quash service, and this Court affirmed. Brivis Enters., Inc. v. Von Plinski, 976 So.2d 1244 (Fla. 3d DCA 2008).

Following a trial on damages, final judgment was entered in favor of the plaintiff. The defendants’ appeal follows.

We review the trial court’s denial of the second amended motion to vacate default under an abuse of discretion standard. See Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006); Finkel Outdoor Prods., Inc. v. Lasky, 529 So.2d 317, 318 (Fla. 2d DCA 1988) (citing N. Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962)) (“A mere abuse of discretion is sufficient to warrant reversal of a trial judge’s refusal to vacate an interlocutory order of default as opposed to a gross abuse of discretion needed to reverse a refusal to vacate a default judgment.”). Under the circumstances of this case, we conclude that the trial court did not abuse its discretion by denying the defendants’ motion to set aside default where the trial court specifically found that Farrell’s testimony was “unworthy of belief,” and the record supports this finding. Moreover, at best, the record, including Farrell’s testimony, indicates that the defendants were guilty of gross neglect, not excusable neglect, and therefore, the trial court did not abuse its discretion by denying the motion to set aside default. See Otero v. Gov’t Employees Ins. Co., 606 So.2d 443, 444 (Fla. 2d DCA 1992) (holding that in allowing default to occur, “gross neglect cannot constitute excusable neglect”). Accordingly, we affirm the order under review. Affirmed.

      . Farrell’s testimony at the evidentiary hearing contradicted his testimony during a deposition in which he testified that he was in St. Vincent when the complaint and summons were served.


text:
    Vernon PITTMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-881.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Vernon Pittman, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before COPE, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Vernon Pittman (“Pittman”) appeals the trial court’s order denying his petition for writ of habeas corpus premised on Pittman’s claim that the thirty-year sentence he received for a 1971 second degree murder conviction violated his due process and double jeopardy rights. Because Pittman raised these arguments in two previous motions, which were denied by the trial court, and affirmed by this Court on appeal, and the petition under review does not contain any new allegations, we affirm on the basis of collateral estoppel and/or law of the case. See State v. McBride, 848 So.2d 287 (Fla.2003).

Because the additional claims raised in Pittman’s brief were not raised below, they are not properly before this Court on appeal. We, therefore, decline to address them on appeal. See Harrell v. State, 894 So.2d 935 (Fla.2005); Robertson v. State, 829 So.2d 901 (Fla.2002).

Affirmed.


text:
    Darron HUGHES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-78.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.

      Kenneth P. Speiller, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ and ROTHENBERG, JJ.
   PER CURIAM.

Darron Hughes appeals his conviction for sale of cocaine within 1000 feet of a place of worship. We affirm.

Defendant-appellant Hughes argues that the trial court should have sustained a hearsay objection during trial. The defendant is correct.

The supervising detective testified at trial that after the drug transaction, the detective met with the confidential informant. The detective testified:

A: Yes. Well, before going to the police station, I had to debrief the confidential informant, and he said that — we asked him how the transaction went, and he said that the suspect had asked him to throw the money—
[DEFENSE COUNSEL]: Your Honor, hearsay again. He can’t repeat what someone else told him.
THE COURT: Overruled.
Q: Go ahead.
A: I asked him how the transaction went, and he said that the suspect asked him to throw the money on the ground. And then once he threw the money on the ground, the suspect placed the narcotics on top of the garbage can and told the confidential informant to take it off the garbage can.

The informant’s out-of-court statement to the detective was hearsay, and there is no applicable exception. See § 90.801(1)(c), Fla. Stat. (2007); Love v. State, 971 So.2d 280, 286 (Fla. 4th DCA 2008). We are satisfied, however, that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The confidential informant testified at trial regarding the same information.

As to the remaining point on appeal, we agree with the trial court that the State laid a proper foundation for the admission of the videotape into evidence. See Wagner v. State, 707 So.2d 827 (Fla. 1st DCA 1998).

Affirmed.


author: CIKLIN, J.

text:
    ALLENBY & ASSOCIATES, INC., Appellant, v. CROWN “ST. VINCENT” LTD., Appellee.
    No. 4D08-1737.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.

      Jon Polenberg and Jude C. Cooper of Polenberg Cooper, P.A., Fort Lauderdale, for appellant.
    Robert D. McIntosh and Alain E. Boi-leau of Adorno & Yoss LLP, Fort Lauder-dale, for appellee.
   CIKLIN, J.

In this case we consider whether the trial court erred in determining that no disputed issues of material fact existed as to a claimed yacht sale commission. Allen-by & Associates, Inc. (“Allenby”), a yacht broker, appeals the final summary judgment in favor of Crown “St. Vincent” Ltd. (“Crown”), the yacht owner, finding Allen-by was not entitled to a commission on the vessel’s sale. Because genuine issues of material fact remain as to whether Allenby was the procuring cause of the sale, we reverse.

In the absence of a special contract, a broker is entitled to a commission when that person is the procuring cause of a sale. Siegel v. Landquest, Inc., 761 So.2d 415, 416-17 (Fla. 5th DCA 2000); First Fla. Realty & Auction Co. v. Peacock, 703 So.2d 1199, 1200 (Fla. 1st DCA 1997). In order to be the procuring cause of the sale of property, the parties must have been brought together and the sale consummated as a result of continuous negotiations conducted by the broker. Sanson v. Dutcher, Higginbotham & Bass, Inc., 401 So.2d 913, 915 (Fla. 4th DCA 1981). See also Rotemi Realty, Inc. v. Act Realty Co., 911 So.2d 1181, 1189 (Fla.2005) (To earn a commission a broker must initiate negotiations by performing some affirmative act to bring the buyer and seller together, and the broker must remain involved in the continuing negotiations between the seller and the buyer unless they intentionally exclude him from the negotiations.); Nat’l Airlines, Inc. v. Oscar E. Dooly Assocs., 160 So.2d 53, 54-55 (Fla. 3d DCA 1964) (“To be the procuring cause the broker must show that he called the potential purchaser’s attention to the property and it was through his efforts the sale was consummated.”).

Genuine issues of material fact remain as to whether Allenby brought the buyer and seller together, initiated negotiations between them, and continued those negotiations — at least until Allenby was, as he claims, excluded. See Siegel, 761 So.2d 415. In Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006), this court recognized:

The standard of review of an order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004). Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996).

Because genuine issues of material fact remain as to whether Allenby was the procuring cause of the sale, we reverse the order granting summary judgment and remand for further proceedings.

Reversed and remanded.

POLEN and HAZOURI, JJ., concur.


author: SUAREZ, J.

text:
    Roger GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-573.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Roger Gonzalez, in proper person.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   SUAREZ, J.

We treat Roger Gonzalez’s appeal as an appeal of the trial court’s denial of his petition for writ of habeas corpus. We affirm the trial court. Fla. R.Crim. P. 3.140(k)(5). See Bridges v. State, 376 So.2d 233 (Fla.1979) (a guilty plea waives all non-jurisdictional defects);


author: STEVENSON, J.

text:
    ADVANTAGE GENERAL INSURANCE CO., LTD., Appellant, v. KILN/QBE INTERNATIONAL, Appellee.
    No. 4D08-1944.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.

      Robert Rivas and Leonard Wilder of Sachs Sax Caplan, P.L., Tallahassee, for appellant.
    Robert J. Witmeyer and John M. Murray of Murray, Morin & Herman, P.A., Tampa, for appellee.
   STEVENSON, J.

Advantage General Insurance Company, Ltd. (“Advantage”), the plaintiff below, appeals the trial court’s final order dismissing with prejudice its complaint for “reinsurance” benefits against KILN, PLC, d/b/a Lloyd’s Underwriters, and QBE International Insurance, Ltd., collectively d/b/a Lloyd’s of London (“KILN & QBE”), pursuant to section 626.903, Florida Statutes (2007), prohibiting suits by unauthorized insurers. We reverse and remand because the instant lawsuit did not arise out of an unauthorized insurance transaction by Advantage.

Advantage, a British Virgin Islands corporation, insured Air Sunshine, a Florida corporation, and consequently purchased reinsurance from KILN & QBE. Following a plane crash, Advantage settled two wrongful death claims for Air Sunshine, and later sought to recover from KILN & QBE. When KILN & QBE refused to pay, Advantage filed the instant suit. KILN & QBE moved to dismiss for failure to state a cause of action, explaining that, pursuant to section 626.908, Advantage, an unauthorized insurer, was barred from bringing suit in Florida. The trial court granted the motion. We conclude that the trial court erred in dismissing Advantage’s lawsuit.

Section 626.90B provides that “[a]s to transactions not permitted under s. 624.402, no unauthorized insurer shall institute, file, or maintain, or cause to be instituted, filed or maintained, any suit, action, or proceeding in this state to enforce any right, claim, or demand arising out of any insurance transaction in this state.” The self-proclaimed purpose of Part VIII of Chapter 626 is protecting Florida’s insureds. See § 626.905, Fla. Stat. (2007).

If, as alleged by KILN & QBE, Advantage lacked a certificate of authorization when it sold insurance to Air Sunshine in Florida, then it could not have sought relief in Florida courts in an action against Air Sunshine. See § 626.903, Fla. Stat. (2007). However, when Advantage purchased reinsurance from KILN & QBE in Florida, Advantage was the insured. In making this purchase of reinsurance, Advantage was not “transacting insurance” within the meaning of the Florida Insurance Code, which defines “transacting insurance” as, among other things, “solicitation or inducement,” “preliminary negotiations,” and “effectuation of a contract of insurance.” § 624.10(1)-(3), Fla. Stat. (2007). Since Advantage filed suit as an insured, not an insurer, we conclude that section 626.903 does not bar Advantage’s claim against KILN & QBE.

Additionally, we conclude that the suit between Advantage and KILN & QBE did not “arise out of’ Advantage’s alleged unauthorized sale of insurance to Air Sunshine. Since Advantage filed suit as an insured, not an insurer, Advantage’s suit arose out of its contract with KILN & QBE, not its contract with Air Sunshine. Furthermore, even in the context of arbitration, where terms are broadly interpreted to favor arbitration, Florida courts have concluded that not all suits between the contracting parties “arise out of’ that contract and are subject to the arbitration clause. See Seifert v. U.S. Home Corp., 750 So.2d 633, 638 (Fla.1999) (“[T]he mere fact that the dispute would not have arisen but for the existence of the contract and consequent relationship between the parties is insufficient by itself to transform a dispute into one ‘arising out of or relating to’ the agreement.”). Because section 626.903 has the effect of barring access to the courts, we see no valid policy reason for engaging in a broad and expansive interpretation of its terms, especially where the statutory scheme itself does not suggest that we do so.

Accordingly, we reverse the final order of dismissal and remand for further proceedings because even if Advantage was an unauthorized insurer of Air Sunshine, section 626.903 does not prohibit Advantage from suing KILN & QBE.

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.

      . Traditionally, in the arbitration setting, courts have interpreted the phrase "arising out of” more narrowly than the phrase "relating to.” Where the term "arising out of” is used, “the scope of the arbitration clause is limited to those claims having some direct relation to the terms and provisions of the contract.” Seifert, 750 So.2d at 636.


text:
    Donna TAYLOR and Lula Corporation, Appellants, v. Michael J. VITETTA and Daniel Taylor, Appellees.
    No. 4D07-4769.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.

      Steven H. Meyer of Steven H. Meyer, P.A., Boca Raton, for appellants.
    Scott M. Behren of Behren & Associates, Weston, for appellee Michael J. Vitet-ta.
   STEVENSON, J.

This appeal challenges the entry of two final default judgments. We reverse because the defendants met their burden for setting aside the defaults.

Daniel Taylor was the director and sole officer of Lula Corporation, a Florida corporation that owned and operated a “Sign-A-Rama” franchise. Lula Corporation contracted with Michael Vitetta to sell the franchise, but on November 2, 2006, Vitet-ta filed a complaint against Lula Corporation, Daniel, and his wife, Donna, for breach of contract, unjust enrichment, and conversion, claiming that Lula defaulted on the sales agreement and failed to return his deposit. Daniel filed his answer and affirmative defenses on December 12, 2006.

On January 23, 2007, Daniel notified Vi-tetta that he had filed a voluntary petition for bankruptcy, which automatically stayed Vitetta’s complaint against him. Nonetheless, on March 19, 2007, Vitetta amended his complaint adding a fourth count for civil theft against all three defendants. In response, on April 10, 2007, Daniel filed a motion to strike the amended complaint due to his pending bankruptcy proceedings. In his motion to strike, Daniel also asserted that Vitetta did not attempt to serve Lula Corporation or Donna until March 19, 2007, more than 120 days after he filed his original complaint. See Fla. R. Civ. P. 1.070(j) (providing that service of the initial process and initial pleading shall be made upon the defendant within 120 days of filing the initial pleading). On April 19, 2007, prior to the trial court ruling on Daniel’s motion to strike, Vitetta moved for and acquired clerk’s defaults against Donna and Lula Corporation for failure to respond to his amended complaint.

On April 30, 2007, following a hearing, the trial court granted Daniel’s motion to strike Vitetta’s amended complaint as to him because of the bankruptcy proceedings. In the same order, the trial court concluded that the issue of whether Donna had been properly served would be considered at a specially-set hearing in the future. Subsequently, Donna and Lula Corporation learned for the first time about the default judgments entered against them and filed a verified motion to vacate. The aforementioned specially-set hearing occurred on October 8, 2007, after which, the trial court denied the motion to vacate and entered final default judgments against Lula and Donna. This appeal followed.

A party seeking relief from a clerk’s default must demonstrate excusable neglect in failing to file a responsive pleading, a meritorious defense, and due diligence. Gibson Trust, Inc. v. Office of the Attorney Gen., 883 So.2d 379, 382 (Fla. 4th DCA 2004). Florida courts have a liberal policy of vacating defaults in order to decide cases on their merits. Id. This court reviews an order denying a motion to vacate pursuant to an abuse of discretion standard. Id.

First, when Vitetta filed his motions for clerk’s defaults against Donna and Lula Corporation, the issue of proper service, as framed in Daniel’s April 10, 2007 motion, had not been resolved, and, according to the trial court’s order, it was to be addressed in a specially-set hearing. Donna and Lula Corporation should not have been required to file answers to Vi-tetta’s complaint until resolution of this issue. See Schneiderman v. Cantor, 546 So.2d 51, 51 (Fla. 4th DCA 1989) (“Defective service suspends personal jurisdiction.”). Additionally, the stay imposed by Daniel’s bankruptcy proceeding caused uncertainty as to which parties the instant suit remained active. This court has previously stated that inaction due to reasonable misunderstanding qualifies as excusable neglect. Jeyanandarajan v. Freedman, 868 So.2d 432, 438-34 (Fla. 4th DCA 2003). We find that Donna and Lula Corporation demonstrated excusable neglect.

Second, in their verified motion to vacate the clerk’s defaults, Donna and Lula Corporation asserted that Vitetta, not the defendants, violated the parties’ sales contract by refusing to close on the transaction and thereby forfeited his deposit. See Bethesda Mem’l Hosp., Inc. v. Laska, 977 So.2d 804, 805 n. 1 (Fla. 4th DCA 2008) (finding that a motion to vacate a default accompanied by an affidavit sufficiently established the existence of a meritorious defense). We find that Donna and Lula Corporation asserted a meritorious defense.

Last, although Donna and Lula Corporation did not file their motion to vacate until seven weeks after entry of the April 20, 2007 default judgments, the relevant time period for due diligence purposes began when Donna and Lula Corporation learned about the default judgments. See Hepburn v. All Am. Gen. Constr. Corp., 954 So.2d 1250, 1252 (Fla. 4th DCA 2007). Vitetta did not include any of the defendants in the certificates of service for the clerk’s defaults, which supports the contention that Donna and Lula Corporation did not learn about entry of the clerk’s defaults immediately. We find that Donna and Lula Corporation acted with due diligence in filing their verified motion to vacate on June 11, 2007.

Because we find that Donna and Lula Corporation satisfied the three requirements necessary to vacate the clerk’s defaults entered against them, see Gibson Trust, Inc., 883 So.2d at 382, we reverse the final default judgments and remand for further proceedings.

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.


author: WELLS, Judge.

text:
    Jerome EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2416.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Jerome Evans, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD and ROTHENBERG, JJ.
   WELLS, Judge.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Felierix GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3285.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Felierix Garcia, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 921.0024(2), Fla. Stat. (2003).


author: LAGOA, J.

text:
    CASA INVESTMENT CO., INC., Petitioner, v. Marcel NESTOR, Respondent.
    No. 3D08-2310.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.

      Rothstein Rosenfeldt Adler and Robert C. Buschel and Juan Carlos Tabio and Richard Storfer (Ft.Lauderdale), for petitioner.
    Robert W. Murphy (Ft-Lauderdale), for respondent.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Casa Investment Co., Inc. (“Casa”) petitions this Court for a writ of certiorari to review a decision of the circuit court appellate division affirming the county court’s entry of final summary judgment in favor of Marcel Nestor (“Nestor”). Because we conclude that the appellate division’s decision constituted a departure from the essential requirements of the law, we grant the petition for certiorari and quash the appellate division’s order.

I. STANDARD OF REVIEW ON SECOND-LEVEL CERTIORARI

“Review on second-level certiora-ri is extremely limited, as we are confined to determining whether the lower court provided due process and followed the correct law. A lower tribunal provides due process if the complaining party was given notice and an opportunity to be heard.” Williams v. Miami-Dade County, 969 So.2d 389, 392 (Fla. 3d DCA 2007); accord Loguercio v. Dep’t of Highway Safety & Motor Vehicles, 907 So.2d 1267 (Fla. 3d DCA 2005). As such, certiorari review should only be granted when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995). In this case, we conclude that the exercise of certiorari review is appropriate.

II. PROCEDURAL BACKGROUND

On July 13, 2007, Casa served its Amended Motion for Final Summary Judgment and noticed the motion for a September 10th hearing. At that hearing, Nestor made an ore tenus motion for summary judgment based upon a statute of limitations defense, which the trial court granted.

In appealing the entry of final summary judgment to the circuit court appellate division, Casa raised both procedural and substantive issues. With regard to the procedural issue, Casa argued that reversal was required because Nestor did not timely notice his summary judgment motion as required by Florida Rule of Civil Procedure 1.510(c). In its opinion, a majority of the circuit court appellate division panel affirmed the county court’s decision, with Judge Israel Reyes dissenting on the ground that reversal was required on the procedural issue. Casa sought certiorari review.

III. ANALYSIS

Because we find merit with the procedural argument raised by Casa, we do not address the substantive issues raised on appeal.

Rule 1.510(c) states in part as follows: The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time copies of any summary judgment evidence on which the movant relies that has not already been filed with the court (emphasis added).

It goes without saying that a party cannot “serve” an oral motion for summary judgment on another party. Indeed, Florida Rule of Civil Procedure 1.080 specifically defines the three ways that “service” is made on a party following the initial pleading: (1) by mail; (2) by hand delivery; or (3) by facsimile transmission of the pleading along with service by any other method permitted by the rule. The language of Rule 1.510(c), explicitly requiring that a movant “shall serve the motion” for summary judgment “at least 20 days before the time fixed for the hearing,” does not permit oral motions for summary judgment.

Moreover, Rule 1.510(c) requires that a summary judgment motion “state with particularity the grounds upon which it is based and the substantial matters of law to be argued.” The purpose of this rule is “to prevent ‘ambush’ by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing.” City of Cooper City v. Sunshine Wireless Co., 654 So.2d 283, 284 (Fla. 4th DCA 1995). Clearly, an oral motion for summary judgment is contrary to this rule.

Finally, Rule 1.510(c) requires at least 20 days between service of a motion for summary judgment and a hearing on the motion. Needless to say, this did not occur nor could it with an oral motion.

Here, the trial court granted a motion for summary judgment, which was neither written nor properly noticed. Nestor’s failure to comply with Rule 1.510(c) deprived Casa of the ability to both adequately respond and prepare for the summary judgment hearing. Because Casa was deprived of the requisite notice required under Rule 1.510(c), we conclude that the circuit court appellate division departed from the essential requirements of law and deprived Casa of due process. See State, Fla. Highway Patrol v. In re: Forfeiture of Twenty Nine Thousand Nine Hundred & Eighty (29,980.00) in U.S. Currency, 802 So.2d 1171, 1172-73 (Fla. 3d DCA 2001) (finding that ore tenus motion for summary judgment deprived non-mov-ant of required notice and required reversal).

Accordingly, we grant the petition for writ of certiorari, quash the decision below and remand with directions to reverse the summary judgment entered in favor of Nestor.

      . Rule 1.080 states in pertinent part:
      (a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party....
      (b) Service; How Made. ... Service on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall be complete upon: (1) handing it to the attorney or to the party, (2) leaving it at the attorney's or party’s office with a clerk or other person in charge thereof, (3) if there is no one in charge, leaving it in a conspicuous place therein, (4) if the office is closed or the person to be served has no office, leaving it at the person's usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (5) transmitting it by facsimile to the attorney's or party's office with a cover sheet containing the sender’s name, firm address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.


text:
    Omar Vaughn SALMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-295.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Omar Vaughn Salmon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Omar Vaughn Salmon appeals from the trial court’s summary denial of his motion to correct an illegal sentence, incorrectly styled as a Florida Rule of Criminal Procedure 3.850 motion by the defendant. The defendant filed this petition in Miami-Dade County Circuit Court, and maintains that this Court should have ordered his Miami-Dade County prison term to run concurrent with his prison term in Bro-ward County. The Miami-Dade County Circuit Court correctly determined from the record that the Miami-Dade County sentence was entered two years prior to the sentence entered in Broward County, and thus the Miami-Dade County court has no jurisdiction over the Broward County sentence. The proper forum for this motion is in Broward County.

We remand with instructions that the trial court dismiss this action as incorrectly filed, without prejudice to the defendant to refile in Broward County.

Reversed and remanded.


text:
    Berry O. RUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-140.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.

      Berry 0. Russell, in proper person.
    Bill McCollum, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See § 775.084, Fla. Stat. (1981); see also Shead, v. State, 367 So.2d 264, 267 (Fla. 3d DCA 1979).


text:
    Yabel CONCEPCION, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-444.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Yabel Concepcion, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and WELLS and LAGOA, JJ.
   PER CURIAM.

Yabel Concepcion appeals the denial of a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate his sentence. A trial court’s denial of a 3.800(c) motion to mitigate sentence is not appealable. Royal v. State, 736 So.2d 157 (Fla. 3d DCA 1999). Accordingly, we dismiss the appeal.

Appeal dismissed.


author: COPE, J.

text:
    Maria Rubi CASTRILLON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-522.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.

      Mavel Ruiz, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

This is an appeal of an order denying a motion for postconvietion relief under Florida Rule of Criminal Procedure 3.850, wherein Maria Rubi Castrillon seeks to vacate her plea on the ground that she was not warned of the deportation consequences of the plea. We affirm, but grant leave to amend.

Through counsel, Maria Rubi Castrillon filed a rule 3.850 motion alleging that in 1994, she entered a nolo contendere plea to grand theft, credit card fraud, and credit card forgery. The court withheld adjudication, imposed three years of probation, and ordered defendant-appellant Castrillon to pay restitution.

The defendant filed her postconvietion motion pursuant to State v. Green, 944 So.2d 208 (Fla.2006). She alleges that the trial court did not advise her of the deportation consequences of the plea, that she would not have accepted the plea if properly advised, and that the plea renders the defendant subject to deportation. The motion is supported by affidavit. The motion states that the transcript of the plea colloquy is unavailable.

The trial court denied relief stating in part:

1. The motion fails to provide any immigration information that would demonstrate that the defendant is a legal immigrant and therefore, subject to deportation solely because of the conviction she is seeking to vacate. The motion does not state basic immigration information, such as the defendant’s alien registration number, date and place of birth and date and port of entry into the United States.

This part of the trial court order is in error. We have summarized Green as follows:

Under Green, a motion to vacate a plea must allege that: (1) the trial court did not advise the defendant of the deportation consequences at the time of the plea; (2) the defendant would not have accepted the plea if properly advised; and, (3) the plea renders the defendant subject to deportation[.]

State v. Gaston, 960 So.2d 803, 804-05 (Fla. 3d DCA2007).

The defendant’s motion complied with item (3) by alleging that she is subject to removal on account of the 1994 plea. She also alleges that there are no other grounds for deportation.

The Green decision does not require that the defendant plead the additional immigration information set forth in paragraph one of the trial court’s order, such as alien registration number, so the motion should not have been denied on that basis. The court does have the discretion, however, to order the defendant to provide this additional information to the State so that the State has a fair opportunity to file an informed response to the motion.

The second basis for dismissal was:

2. The motion does not meet a requirement of State v. Green, 944 So.2d 208 (Fla.2006), in that the motion does not state how the defendant will meet her burden of proving that the trial court did not advise her that the plea might subject her to deportation, if she is not a United States citizen.

The trial court’s ruling on this point is correct. The Green decision states, in part:

Further, the defendant must state in the rule 3.850 motion how he or she will prove that the immigration warning was not given. In the normal case, this will require the defendant to allege that a hearing transcript will demonstrate a violation of rule 3.172(c)(8).

Green, 944 So.2d at 218. In this case the defendant’s motion revealed that no transcript is available. Where that is the case, Green requires the defendant to include in the motion a statement of how the defendant intends to prove that the immigration warning was not given.

Because this is a defect which can be cured by filing an amended motion, we affirm the order of denial but grant the defendant leave to file an amended motion within thirty days of the issuance of our mandate, see Spera v. State, 971 So.2d 754 (Fla.2007), which deadline may be extended, if necessary, for good cause shown. See Fla. R.Crim. P. 3.050; Rodriques v. State, 980 So.2d 1203, 1204 (Fla. 4th DCA 2008). The amended motion will relate back to the date of filing the original motion.

Affirmed.

       The Florida Supreme Court has indicated that where, as here, the motion is facially insufficient but the insufficiency can be cured by amendment, "the proper procedure is to strike the motion with leave to amend within a reasonable period.” Spera, 971 So.2d at 761. Neither party called Spera to the attention of the trial court.


text:
    Yileymi SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3B09-449.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Yileymi Suarez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and ROTHENBERG, JJ.
   COPE, J.

This is an appeal of an order denying an extension of time for filing a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

Defendant-appellant Yileymi Suarez was convicted at trial of vehicular homicide and sentenced to imprisonment. Suarez v. State, 879 So.2d 1251 (Fla. 3d DCA 2004). Her petition for review in the Florida Supreme Court was denied on January 31, 2005. Her two-year time limit for filing a rule 3.850 motion expired on January 31, 2007.

The defendant filed her motion for extension of time on August 14, 2008. She alleged that she was having difficulty obtaining documents from her trial counsel. The trial court denied the motion and the defendant has appealed.

The trial court denied the motion on the theory that the defendant was required to file her motion for extension of time prior to the expiration of the two-year deadline of rule 3.850. We respectfully disagree with that part of the trial court’s order.

The Florida Supreme Court has held that the deadline for filing a rule 3.850 motion may be extended under rule 3.050. Under rule 3.050(1), the time period may be enlarged for good cause if the defendant files the extension request prior to the expiration of the two-year period. State v. Boyd, 846 So.2d 458, 460 (Fla.2003). Under the facts of Boyd, rule 3.050(1) was the relevant provision.

The Fourth District has explained that rule 3.050(2) allows a motion for extension to be filed after the two-year deadline. Parker v. State, 907 So.2d 694, 695 (Fla. 4th DCA 2005). Under subdivision (2), there is a more stringent standard. The defendant must show both good cause and that “the failure to act was the result of excusable neglect....” Id.; Parker, 907 So.2d at 695.

In the present case, the defendant’s motion did not address the issue of excusable neglect. We therefore affirm the order now before us. This ruling is without prejudice to the defendant to refile the motion if she has a good faith basis for asserting good cause and excusable neglect.

Affirmed.


text:
    Bernard JONES, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-741.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Rehearing Denied June 5, 2009.

      Bernard Jones, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   SUAREZ, J.

We deny Bernard Jones’ petition for writ of habeas corpus alleging claims of ineffective assistance of appellate counsel, as it is untimely filed. Fla. R.App. P. 9.141(c)(4)(B).

Petition denied.


author: ALLEN, J.

text:
    HEARTLAND ORGANICS, INC., a Florida corporation; Jennings Farms, Inc., a Florida corporation; Wendi Sue Jennings, an individual; and James Bryant Jennings, an individual, Appellants, v. MC DEVELOPMENTS, LLC, a Florida limited liability company; Sunrise Growers, Inc., a Florida corporation; Heartland Organics, LLC, a Florida limited liability company; and Michael L. Causley, an individual, Appellees.
    No. 1D08-5029.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Bruce Brashear of Brashear, Marsh, Kurdziel & McCarty, P.L., Gainesville, for Appellants.
    Ravi Batta of Rosenfeld Stein Batta, P.A., Miami, for Appellees.
   ALLEN, J.

The appellants challenge an order granting the appellees’ motion to abate for improper venue and transferring the appellants’ action from Suwannee County to Dade County. The trial court granted the motion based on the joint residency rule, set out in Enfinger v. Baxley, 96 So.2d 538 (Fla.1957). Because the joint residency rule does not preclude a plaintiff from electing a venue where the cause of action accrued, we reverse the order.

The appellants filed a complaint in Suwannee County alleging that they were due payment of monies owed by the ap-pellees, which payment was to occur in Suwannee County. The appellees filed a motion to abate for improper venue, contending that pursuant to the joint residency rule, venue was proper only in Dade County, where the corporate and individual defendants resided.

In Enfinger, the Florida Supreme Court set out the joint residency rule, which requires that when a natural person is sued along with a corporate defendant, and there is a county in which both the individual and corporate entity reside, venue is proper only in the county of joint residency. 96 So.2d at 540-41. This rule is an exception to section 47.021, Florida Statutes, which provides that a plaintiff may bring an action against multiple defendants in any county in which any defendant resides.

However, the joint residency rule is not an exception to section 47.011, Florida Statutes, the general venue statute, which permits a plaintiff to file a civil action where the cause of action accrues. See Enfinger, 96 So.2d at 539-41 (finding the joint residency rule to apply where both the cause of action and the individual and corporate defendants’ residences were in the same county); Carbone v. Value Added Vacations, Inc., 791 So.2d 1217, 1220 (Fla. 5th DCA 2001) (stating “venue based on residency is proper only in the county of joint residence”). Because the cause of action in this case as alleged by the appellants accrued in Suwannee County, venue was proper in Suwannee County, and the motion to abate for improper venue should have been denied.

On facts analogous to those in this case and relying on Enfinger, the Fourth District held in Sinclair Fund, Inc. v. Burton, 623 So.2d 587 (Fla. 4th DCA 1993), that in a contract action for payment of money, venue was not proper where payment was to be made, but was only proper in the county in which the individual and corporate defendant jointly resided. We reject this interpretation of Enfinger, and certify conflict between Sinclair Fund and our decision in the present case. Accordingly, the order under review is reversed and the case is remanded.

WOLF, and DAVIS, JJ., concur.


author: REST, S., Associate Judge.

text:
    Mariann C. HUDSON-McCANN, Appellant, v. Laurence L. McCANN, Appellee.
    No. 5D07-3728.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2009.

      James R. Dressier, Cocoa Beach, for Appellant.
    Susan K. Erlenbach of Erlenbach Law Offices, P.A., Titusville, for Appellee.
   REST, S., Associate Judge.

In this dissolution of marriage proceeding, the wife challenges provisions of the Final Judgment awarding primary residence of the child to the husband, imputing income to the wife, establishing child support based upon the imputed income and requiring each party to bear his or her own attorney’s fees and costs. For the reasons set forth herein, we affirm the award of primary residence to the husband, but reverse as to the remaining issues.

The standard of review for the trial court’s findings and determination regarding primary parental responsibility is abuse of discretion. The trial court’s findings regarding the best interest of the child must be supported by competent, substantial evidence. Knifley v. Knifley, 944 So.2d 1136 (Fla. 5th DCA 2006). The trial court heard testimony of the parties, the expert witnesses and other witnesses at several temporary hearings and finally at the trial. The trial court appears to have considered the many statutory factors contained in Chapter 61.13, Florida Statutes (2004). As the trial court has made the appropriate finding, we will not re-weigh the factual evidence so long as it is supported by the record. Lahodik v. Lahodik, 969 So.2d 533 (Fla. 1st DCA 2007). The finding that it was in the best interest of the child for the father to be designated the primary residential parent is supported by competent, substantial evidence, and therefore must be affirmed. Cadle v. Norris, 817 So.2d 1075 (Fla. 5th DCA 2002).

Next, the wife challenges the trial court’s imputation of income to her in the amount of $2,000 per month. We conclude after a review of the record that the court’s imputation of income to the wife is not supported by competent, substantial evidence. There was no evidence presented that the wife had ever earned $2,000 per month. Roth v. Roth, 973 So.2d 580 (Fla. 2d DCA 2008). There was also no evidence presented by either party regarding the wife’s employment potential and probable earnings, based upon her work history and qualifications. Schram v. Schram, 932 So.2d 245 (Fla. 4th DCA 2005). Likewise, neither party presented any evidence regarding the prevailing wages in the community for someone with the wife’s qualifications and background. Guard v. Guard, 993 So.2d 1086 (Fla. 5th DCA 2008). The imputation of income to the wife cannot be sustained and, accordingly, must be reversed.

The wife also appeals the trial court’s ruling regarding child support. Because child support is a creature of the combined income of the parents, actual or imputed, our reversal of the imputed income requires the trial court to revisit and recalculate the child support to be awarded. Hotaling v. Hotaling, 962 So.2d 1048 (Fla. 2d DCA 2007).

To sustain the attorney’s fees ruling, the court must make findings and the record must support the comparative needs and abilities of the parties to pay attorney’s fees. The trial court’s ruling, which required each party to pay his or her own attorney’s fees, does not contain any findings. In the absence of such findings, we reverse the award and remand on this issue as well. Fulmer v. Fulmer, 961 So.2d 1081 (Fla. 1st DCA 2007).

AFFIRMED in part, REVERSED in part and REMANDED.

MONACO and COHEN, JJ., concur.


author: CASANUEVA, Judge.

text:
    Ronald Lee POWANDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-695.
    District Court of Appeal of Florida, Second District.
    May 1, 2009.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Ronald Lee Powanda appeals his upward departure sentence of thirty years’ incarceration imposed after he admitted violating the terms of his probation. He argues that there was insufficient evidence to support the departure. The State concedes error and recommends reversal. We agree and reverse and remand for resentencing.

Procedural History

For a criminal act which occurred on April 5, 1998, the State charged Mr. Po-wanda with the first-degree felony of sexual conduct with a child twelve years of age or older, but less than eighteen years of age, over whom he was in a position of familial or custodial authority. See § 794011(8)(b), Fla. Stat. (1997). Under the sentencing guidelines, Mr. Powanda’s scoresheet reflected a permissible sentencing range of 112.5 to 187.5 months’ incarceration. On December 10, 1999, Mr. Po-wanda pleaded guilty in exchange for a sentence of ten years’ incarceration to be followed by seven years’ probation.

In 2008, Mr. Powanda admitted violating multiple terms of his probation following his release from prison. His scoresheet at the time of his violation of probation hearing revealed a permissible sentencing range of 117 to 195 months’ incarceration. The State sought an upward departure sentence' of thirty years’ incarceration, alleging two aggravating circumstances: the “[v]ictim [was] especially vulnerable due to age or physical or mental disability,” and the “[defendant [was] not amenable to rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct as described in s. 921.001(8).” Fla. R. Crim. P. 3.991 (2008). The trial court imposed the requested sentence, finding that both aggravating circumstances supported the upward departure. Mr. Powan-da filed a notice of appeal and subsequently a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). The trial court denied the motion.

Analysis

Mr. Powanda argues that that there was insufficient evidence to support the trial court’s findings on either applicable aggravating circumstance. The State concedes error as to both aggravating circumstances and recommends reversal and remand for the imposition of a guideline sentence.

“The level of proof necessary to establish facts that support a departure from the sentencing guidelines is a preponderance of the evidence.” § 921.001(4)(a)(6), Fla. Stat. (2007). “This aspect of the [trial] court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999).

First, the trial court found that “[t]he victim was especially vulnerable due to age or physical or mental disability.” However, neither party presented any evidence about the victim’s vulnerability at either Mr. Powanda’s violation of probation hearing or at his 1999 plea hearing. Second, the trial court found that there was an escalating pattern of criminal conduct because Mr. Powanda’s scoresheet demonstrated he had two prior offenses of attempted burglary and trafficking in stolen property, third- and second-degree felonies, respectively. However, in State v. Darrisaw, 660 So.2d 269, 271 (Fla.1995), the supreme court required competent, substantial evidence to establish both a pattern of criminal conduct and the escalation of that conduct to satisfy this particular aggravating circumstance under rule 3.991. Here, it appears that Mr. Po-wanda’s felony offenses met the definition of “escalating” because they increased in degree. See Darrisaw, 660 So.2d at 271. However, the State presented no record evidence of any pattern. See id. (holding that the pattern requirement could be satisfied “either where the offenses are committed in temporal proximity or where there is a similarity of offenses”); see also Harvey v. State, 954 So.2d 101, 103 (Fla. 2d DCA 2007) (applying the Darrisaw test and vacating the defendant’s sentence because “[t]he State’s proof failed to establish a pattern of escalating criminal conduct, and the trial court abused its discretion in so finding”). Consequently, neither aggravating circumstance was supported by competent, substantial evidence.

Conclusion

Due to the lack of any evidence supporting the trial court’s findings, we reverse Mr. Powanda’s upward departure sentence. On remand, the trial court shall impose a sentence that falls within the permissible guideline range.

Reversed and remanded.

KELLY and CRENSHAW, JJ., Concur.