author: QUINCE, J. CANADY, C.J.,

text:
    Sergio CORONA, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-1054.
    Supreme Court of Florida.
    June 9, 2011.

      Steven G. Mason, Orlando, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Kellie Anne Nielan and Wesley Harold Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   QUINCE, J.

Sergio Corona seeks review of the decision of the Fifth District Court of Appeal in Corona v. State, 929 So.2d 588 (Fla. 5th DCA 2006). The case on review expressly and directly conflicts with the decisions of this Court in State v. Lopez, 974 So.2d 340 (Fla.2008), and Blanton v. State, 978 So.2d 149 (Fla.2008), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The conflict issue in this case concerns a defendant’s Sixth Amendment right to confrontation. Specifically, the issue is whether a discovery deposition satisfies the United States Supreme Court’s mandate concerning confrontation, outlined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that a defendant be given a prior opportunity to cross-examine a declarant of a testimonial statement. The Fifth District Court of Appeal held that the prior deposition in this case fulfilled Corona’s “prior opportunity to cross-examine.” Corona, 929 So.2d at 596. Subsequently, we issued our decisions in Lopez and Blanton, holding that a discovery deposition did not comply with Crawford’s cross-examination requirement. Lopez, 974 So.2d at 347-50; Blanton, 978 So.2d at 155.

In light of our prior decisions in Lopez and Blanton, we reaffirm that a discovery deposition is not the equivalent of a prior opportunity for cross-examination. Because Corona did not otherwise have an opportunity to cross-examine the declarant in this case, we conclude that Corona’s constitutional right to confrontation was violated. Moreover, because this constitutional violation resulted in the admission of improper evidence and constitutes harmful error, as explained below, we conclude that Corona is entitled to a new trial. Therefore, we quash the decision of the Fifth District and remand this case to the district court with directions to vacate Corona’s conviction and sentence and remand to the trial court for a new trial.

Facts and Procedural History

The facts relevant to this case are as follows. Appellant, Sergio Corona, was convicted of the capital sexual battery of his eleven-year old daughter, A.C. The conviction stemmed from an incident that occurred while Corona and his family were vacationing in Orlando, Florida, from their home in Illinois. The family included Corona, his daughter, A.C., his wife, Victoria Corona (hereinafter Victoria), and Victoria’s relatives.

The State initially anticipated that Victoria and A.C. would testify at the trial. However, Victoria later became uncooperative, and the State was unsuccessful in its attempts to procure her or AC.’s attendance for trial. At a subsequent hearing on the admissibility of A.C.’s hearsay statements that were made to police officers immediately after the incident, the trial court ruled, over Corona’s arguments to the contrary, that A.C.’s statements were admissible.

Thus, the primary evidence presented at the 2002 trial against Corona became the hearsay statements of A.C., in addition to later statements made by Corona to police officers in Illinois. During her opening statement, the prosecutor informed the jury that they would hear testimony that A.C. stated Corona placed his mouth on her vagina and testimony that Corona admitted to the crime. A.C.’s statements were presented through the testimony of Deputy Jocelyn Avilas of the Orange County Sheriffs Department, over Corona’s objections. According to Avilas, A.C. stated that Corona laid her down on the bed, pulled her panties to the side, and placed his mouth on her “toto.” A.C. then told Avilas that her mother came into the room and started screaming and hitting Corona. It was later revealed at trial that Corona fled the hotel room after being attacked by Victoria, took the family van, and drove to Chicago.

In regard to Corona’s statements made concerning the incident, Corona filed a motion to suppress, which was denied by the trial court after a hearing. Thus, the statements were presented at trial through the testimony of Officer Jerome Maikow-ski, a Chicago police officer, and Trooper Susan Ewald, an Illinois state trooper. Officer Maikowski testified that on January 27, 2002, he received a call to assist a state trooper on the Eisenhower Expressway. When he arrived, Maikowski observed an individual, later identified as Corona, sitting in a van that was blocked by several other vehicles. Maikowski also noticed a large group of people that were yelling and attempting to get to Corona. Maikowski tried to calm the group down and placed Corona in the back seat of his police vehicle in order to defuse the situation. Once placed in the squad car, Corona stated, “I can’t believe I did it. Why did I do it? That’s my daughter.” Mai-kowski then spoke to some individuals in the group to determine the cause of the disturbance. After speaking to these individuals and a state trooper, Maikowski went back to his vehicle and handcuffed Corona, placing Corona under arrest. During Maikowski’s subsequent drive to a police substation, Corona repeatedly made statements such as, “This is my daughter. This is my family. I couldn’t help myself.” During a later interview, Corona confessed that he pulled his daughter’s panties to the side and placed his mouth on her genital area. He also admitted that he ran out of the room when Victoria arrived.

Trooper Ewald testified that she was also called to a disturbance on the Eisenhower Expressway, where she observed a van being blocked by a sport utility vehicle. She also noticed a group of approximately ten people yelling, screaming and crying, with the screaming and hollering directed towards Corona. Ewald spoke with Victoria, then walked to Officer Mai-kowski’s car and asked Corona for a driver’s license, which he provided. Subsequently, at the substation, Ewald again spoke with Victoria and also A.C. Finally, Ewald interviewed Corona with Maikow-ski, during which time Corona confessed to putting his mouth on his daughter’s vagina.

Neither officer recorded Corona’s statements at the time of the alleged confession, although Ewald did complete a field report for the case. Ewald testified that she completed a second report approximately six months later which did include Corona’s confession. The report was completed at the request of an Orlando detective and a state attorney. After Ewald’s testimony, the State rested its case. Corona then moved for a judgment of acquittal, which was denied by the trial court.

Corona testified as the only defense witness at trial. According to Corona, he and Victoria were having marital difficulties and had argued while the family was vacationing in Orlando. On the night of the incident, he was giving his daughter a hug in order to give her a kiss. He stated that he never put his mouth on his daughter’s private areas, but Victoria came in and started screaming, scratching, and biting Corona. He then ran away because he did not want anyone to get hurt and he was upset. He traveled to Chicago and was stopped by a car a couple of days later. Victoria came out of the car and began hitting his van door. According to Corona, Victoria was the only angry person in the group, as the others were trying to calm her down. When the police arrived, they handcuffed him and placed him in the squad car. When the officers began driving him to the police station, he stated, “I can’t believe I did it,” by which he meant that he could not believe he left his family in Florida. He never stated, “I can’t believe I did it to my daughter.”

Corona also testified that he did not give his license to Ewald because Victoria had his wallet which he had left in Florida. Corona also denied admitting to Maikow-ski and Ewald that he put his mouth on his daughter’s private parts. In fact, Corona testified that before coming to court, he did not know the meaning of “genital area” or “vagina.” Rather, Corona would refer to female sexual organs as “private parts.” He also had never heard the word “toto” before and had never heard his daughter use the word “toto.”

After Corona’s testimony, the defense rested and renewed the motion for judgment of acquittal, which again was denied by the trial court. During her closing argument, the prosecutor made repeated references to A.C.’s statements that had been presented through Avilas’s testimony. After deliberating, the jury returned a verdict finding Corona guilty of the charge of sexual battery on a child under the age of twelve. The jury also returned a special verdict finding Corona over the age of eighteen at the time of the offense. The trial court sentenced Corona to life imprisonment.

Corona appealed his conviction and sentence to the Fifth District Court of Appeal, which per curiam affirmed both the judgment and sentence. Corona v. State, 853 So.2d 430 (Fla. 5th DCA 2003). Corona then filed a petition for certiorari review with the United States Supreme Court. While the petition was pending, the United States Supreme Court issued its decision in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Supreme Court granted Corona’s petition and remanded the case to the Fifth District for further consideration in light of Crawford. See Corona v. Florida, 541 U.S. 930, 124 S.Ct. 1658, 158 L.Ed.2d 352 (2004).

On remand, the Fifth District agreed with Corona’s arguments that Crawford was applicable to his case. Yet the court noted that it had to determine whether his claim was preserved for review in accordance with state law requirements. The district court noted that in order to preserve an issue for appeal under Florida law, “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.” Corona, 929 So.2d at 592 (quoting Spann v. State, 857 So.2d 845 (Fla.2003)). The district court recognized that this rule had been applied to cases that were pending on review or not yet final when a decision changing the law was issued. Corona, 929 So.2d at 593. Thus, the Fifth District concluded that a defendant was required to argue a change in the law to preserve the issue.

Here, the district court determined that Corona had made a “generic” pretrial argument that his “confrontation” rights were being violated, after the trial court determined that A.C.’s hearsay statements were reliable and admissible. However, Corona did not specifically argue that the test for the admission of this evidence, previously set out in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), should be reconsidered. Instead, he simply asserted that the victim’s statements were unreliable hearsay and objected at trial that the testimony was impermissible hearsay. The district court held that these arguments did not preserve the Crawford issue for appellate review. The court also recognized that the State conceded the preservation issue on appeal, but the court held this concession was made in error and was not binding on the court. Corona, 929 So.2d at 593. Moreover, the court stated that cases in which other courts had excused the preservation requirement in a Crawford case did not comport with Florida’s preservation requirements. Corona, 929 So.2d at 593 n. 4.

Additionally, the district court concluded that even if the issue had been preserved, Corona would not be entitled to relief. The court agreed that A.C.’s statements in this case were testimonial, but concluded that the State demonstrated that she was “unavailable” for trial, pursuant to Florida’s hearsay statutes and the Confrontation Clause, and that Corona had a prior opportunity to cross-examine her. Corona, 929 So.2d at 594. With regard to Corona’s prior opportunity for cross-examination, the district court noted that Corona took a pretrial deposition of both A.C. and Victoria, questioning them at length under oath. Corona argued that he had a right to a face-to-face confrontation and his confrontation rights could not be satisfied by deposition because he did not have an absolute right to be present at the deposition. However, the district court noted that similar to the case of Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004), approved in result, 978 So.2d 149 (Fla.2008), the record in this case did not indicate that Corona had requested and was denied the right to attend his daughter’s deposition. Thus, the court declined to address the extent of Corona’s right to a face-to-face confrontation with A.C.

The court recognized that two other district courts had certified conflict with Blanton. Corona, 929 So.2d at 595 (citing Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2006) (en banc), and Lopez v. State, 888 So.2d 693 (Fla. 1st DCA 2004), approved in part by, State v. Lopez, 974 So.2d 340 (Fla.2008)). However, the Fifth District did not depart from its Blanton decision, noting that Florida permits discovery depositions in criminal cases as a matter of course. The district court reasoned that depositions could be used for impeachment; thus, a defendant could use the depositions to obtain sufficient evidence to satisfy his confrontation rights. Corona, 929 So.2d at 595-96.

While the district court acknowledged that a defendant did not have an absolute right to be present at a deposition, the court recognized that a defendant could be present for “good cause,” which would appear to include the exercise of a confrontation right. Corona, 929 So.2d at 595 (quoting Florida Rule of Criminal Procedure 3.220(h)(7)). The district court again noted that a thorough, detailed interrogation had been conducted during the depositions of Victoria and A.C. Accordingly, the district court concluded that Corona had a prior opportunity to confront and cross-examine his daughter, unless the phrase “prior opportunity to cross-examine” in Crawford meant something other than what the plain meaning of the words conveyed. Corona, 929 So.2d at 596. The court posited that its view that a pretrial deposition could satisfy the requirements of Crawford would not adversely affect the confrontation rights of a defendant because defendants were now on notice that they had to use pretrial opportunities to cross-examine a victim or the right would be considered waived. Corona, 929 So.2d at 596. In light of the above, the Fifth District affirmed Corona’s conviction and sentence. Id.

Corona petitioned this Court for discretionary jurisdiction, but the case was stayed pending disposition of State v. Lopez, 974 So.2d 340 (Fla.2008). In Lopez, this Court ultimately held that a discovery deposition did not satisfy Crawford’s requirement that a defendant have a prior opportunity to cross-examine a declarant. Lopez, 974 So.2d at 350. The Court also issued its opinion in Blanton v. State, 978 So.2d 149 (Fla.2008), which reaffirmed its Lopez decision and disapproved the reasoning of the Fifth District in Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004). In light of the Lopez and Blanton opinions, the Court issued a show cause order to both Corona and the State as to whether this Court should accept jurisdiction in this case, and subsequently accepted jurisdiction.

ANALYSIS

Corona raises several issues for this Court’s review. However, we limit our discussion in this case to the Crawford issue and the admissibility of two pieces of evidence presented at trial — statements made by A.C. and statements made by Corona — since they are dispositive to our review. We begin with an overview of the Sixth Amendment right of confrontation.

The Sixth Amendment right of confrontation provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The United States Supreme Court has held that a hearsay statement offered against the defendant violates this constitutional right if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In setting out what is constitutionally required, the Court receded from its prior decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held that hearsay statements should be excluded absent a “showing of particularized guarantees of trustworthiness” and were admissible under the Sixth Amendment if they carried “adequate ‘indicia of reliability.’ ” Id. at 66, 100 S.Ct. 2531. The Crawford Court held that for testimonial statements, “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U.S. at 69, 124 S.Ct. 1354. In a subsequent opinion, the Court observed that “[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

In the present case, we agree with the Fifth District’s determination that A.C.’s statements to Deputy Avilas were testimonial and that A.C. was unavailable for trial. While the Court in Crawford did not include an explicit definition of “testimonial” in its decision, it did hold that such statements included “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations.” 541 U.S. at 68, 124 S.Ct. 1354. The Court later clarified that where the circumstances objectively indicate that there is no ongoing emergency and that the primary purpose of the police interrogation is to establish or prove past events potentially relevant to later criminal prosecution, statements in response to the interrogation are testimonial. Davis, 547 U.S. at 822, 126 S.Ct. 2266. In this case, A.C. was interrogated by Deputy Av-ilas, and the facts indicate that there was no ongoing emergency and that A.C.’s statements were taken to determine if criminal activity had occurred. See id. at 829-30, 126 S.Ct. 2266 (concluding that declarant’s statements were testimonial, although made after a domestic disturbance, partly because there was no emergency in progress and no immediate threat to the declarant’s person).

In addition, the Fifth District was correct in holding that A.C. was “unavailable.” As noted by the district court, “unavailability” occurs where the witness “[i]s absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.” Corona, 929 So.2d at 594 (quoting § 90.804(1)(e), Fla. Stat. (2001)). However, a declarant is not unavailable as a witness under the statute “if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.” § 90.804(1)(e), Fla. Stat. (2002). Although Corona implies that the victim’s unavailability was caused by a lack of due diligence by the State, the facts in the record refute this claim. Victoria was initially cooperative in her husband’s prosecution. In her written statement filed with the Orange County Sheriff’s Office, Victoria stated that she would come back to Orlando to testify in this case. Both Victoria and A.C. participated in depositions on June 7, 2002. Victoria also testified at a motion to suppress hearing, which was held on June 19, 2002. However, once it became clear that Victoria no longer wanted to participate in the proceedings, the State requested a Certificate of Interstate Extradition on July 19, 2002. The trial court granted the request, but Victoria evaded subsequent attempts by investigators to contact her. Therefore, the extradition could not be completed. In light of the above, it is clear that the unavailability was not because of any unreasonable delay on the part of the State, but was because of Victoria’s last minute unwillingness to cooperate, which prevented any involvement of A.C. at trial.

However, in light of this Court’s recent precedent, the district court erred in holding that the pretrial deposition of A.C. afforded Corona an adequate opportunity to cross-examine the victim/declar-ant. In State v. Lopez, 974 So.2d 340 (Fla.2008), and Blanton v. State, 978 So.2d 149 (Fla.2008), this Court provided several reasons why such depositions do not meet Crawford’s cross-examination requirement. The Court held that Florida Rule of Criminal Procedure 3.220(h), which permits discovery depositions,

was not designed as an opportunity to engage in adversarial testing of the evidence against the defendant, nor is the rule customarily used for the purpose of cross examination. Instead, the rule is used to learn what the testimony will be and attempt to limit it or to uncover other evidence and witnesses. A defendant cannot be “expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition.” This is especially true if the defendant is “unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent’s statements.” [Moreover], a discovery deposition is not intended as an opportunity to perpetuate testimony for use at trial, is not admissible as substantive evidence at trial, and is only admissible for purposes of impeachment. [Finally], the defendant is not entitled to be present during a discovery deposition pursuant to rule 3.220(h). Thus, the exercise of the right to take a discovery deposition under rule 3.220 does not serve as the functional substitute for in-court confrontation of the witness.

Blanton, 978 So.2d at 155 (citations omitted) (quoting State v. Basiliere, 353 So.2d 820, 824-25 (Fla.1977)); see also Lopez, 974 So.2d at 347-50. Based on our analy-ses in Lopez and Blanton, it is clear that Corona lacked the prior opportunity for cross-examination as required by Crawford. Therefore, as Corona argues, and the State concedes, the admission of A.C.’s hearsay statements was improper.

Whether Corona Preserved the Crawford Issue

Violations of the Confrontation Clause, where preserved, are subject to harmless error analysis. State v. Contreras, 979 So.2d 896, 911 (Fla.2008). However, in this case, the State argues that Corona’s Confrontation Clause argument is unpreserved. Because there is a dispute between the parties as to whether Corona’s confrontation claim is preserved, we first analyze the objections made by Corona concerning A.C.’s statements before considering the effect the confrontation error had on Corona’s trial.

At the pretrial hearing on the admissibility of hearsay statements, the State asserted that A.C. was “unavailable” for trial. After hearing testimony from the State’s witnesses and argument from the State and Corona, the trial court determined that A.C. was unavailable as a witness and that her statements were reliable and admissible. After the trial court’s ruling, defense counsel argued that the admission of A.C.’s statements violated Corona’s constitutional right to confrontation. The trial court rejected this confrontation argument.

Subsequently, at trial, and immediately before the testimony of a State witness, defense counsel informed the court that she would like to renew all previous objections. When the court asked if counsel wanted to renew any in particular, she stated, in part, “the child’s hearsay statements coming in.” Later, during the testimony of Deputy Avilas, counsel objected on hearsay grounds when Avilas was questioned about statements made by A.C. The trial court then stated, “Rather than objecting to every single question that gets asked, why don’t we assume you have a standing objection to this line of questioning. And based upon prior rules [sic] by the court, I’m going to overrule those objections. But you’ve preserved your objection.”

In order for an appellate court to reverse a judgment or sentence on appeal, the asserted error must either be preserved or constitute fundamental error. To preserve the error, three requirements must be met:

First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” The purpose of this rule is to “place [ ] the trial judge on notice that error may have been committed, and provide [ ] him an opportunity to correct it at an early stage of the proceedings.”

Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (citations omitted) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982); Castor v. State, 365 So.2d 701, 703 (Fla.1978)). These requirements are also codified in our statutes. Section 924.051, Florida Statutes (2002), outlines the “[t]erms and conditions of appeals and collateral review in criminal cases.” Specifically, section 924.051(3), Florida Statutes (2002), states in part, “An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.” Subsection (1)(b) notes that an issue, legal argument or objection to evidence is preserved when it is “timely raised before, and ruled on by, the trial court ... [and is] sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” § 924.051(1)(b), Fla. Stat. (2002).

Based on our review of the record, we conclude that Corona has met both the statutory and case law requirements for preservation. Although we recognize that an objection to an out-of-court statement as inadmissible hearsay will not preserve the Crawford issue, Williams v. State, 967 So.2d 735, 748 n. 11 (Fla.2007) (citing Schoenwetter v. State, 931 So.2d 857, 871 (Fla.2006)), we do not interpret our precedent as imposing a requirement that a defendant intone special “magic words” in order to preserve this constitutional claim. See, e.g., Murray v. State, 3 So.3d 1108, 1117 (Fla.2009) (“While no magic words are needed to make a proper objection, the articulated concern must be ‘sufficiently specific to inform the court of the perceived error.’ ”) (quoting State v. Stephenson, 973 So.2d 1259, 1262 (Fla. 5th DCA 2008)); see also Evans v. State, 838 So.2d 1090, 1097 n. 5 (Fla.2002) (holding that failure to specifically assert a Sixth Amendment challenge will not preclude appellate review where the hearsay objection “is closely related to the right of confrontation”). Rather, as denoted in our statutes, an issue is preserved where it is timely raised and ruled on and apprises the court of the relief sought and the basis for that relief. The record in this case demonstrates that the trial court was well aware of the nature of the objections when it overruled the objections on the basis of its prior rulings concerning A.C.’s statements. Importantly, the court’s prior ruling concerning the exclusion of A.C.’s statements was based in part on the court’s rejection of Corona’s confrontation argument. Thus, it is clear to this Court that Corona’s later hearsay objection “fairly apprised the trial court of the relief sought and the grounds therefor.” § 924.051(1)(b), Fla. Stat. (2002). In light of the unique facts in this case, we conclude that Corona’s confrontation violation was preserved and is subject to harmless error review.

Harmless Error Analysis

In conducting our harmless error analysis, this Court must determine whether “there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). The burden rests on the State to demonstrate that the error was harmless. Id. A proper analysis requires “an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. at 1135.

In this case, it is clear that harmful error occurred. An examination of the wrongly admitted testimony reveals that the statements made by A.C. were among the most significant pieces of evidence introduced by the State, particularly in light of the fact that there was no physical evidence of the sexual battery. In its opening statement, the State told the jury that they would hear testimony that A.C. told police her father had put his mouth on her vagina. During trial, Deputy Avilas gave a detailed description of what the child victim told her. During its closing argument, the State agreed that the jury could either believe the statements of A.C. and her mother and the statements Corona made when he was arrested, or believe Corona’s testimony at trial. The State reminded the jury that A.C. told the investigator that Corona had placed his mouth on her vagina. The argument made repeated references to the “words” of A.C. that were elicited through testimony. In its final statement, the State commented in part, “Remember what [A.C.] said. You have her words.” It is clear that A.C.’s statements were extremely influential evidence. Therefore, we conclude that the error of admitting the -victim’s statements affected the verdict in this trial.

The degree of error in this case is even more apparent when considering the fact that without the statements from A.C., the testimony concerning Corona’s statements and subsequent confession should also have been excluded from trial pursuant to the legal principle of corpus delicti. In State v. Allen, 335 So.2d 823 (Fla.1976), this Court described the corpus delicti rule as follows:

It is a fundamental principle of law that no person be adjudged guilty of a crime until the state has shown that a crime has been committed. The state therefore must show that a harm has been suffered of the type contemplated by the charges (for example, a death in the case of a murder charge or a loss of property in the case of a theft charge), and that such harm was incurred due to the criminal agency of another. This usually requires the identity of the victim of the crime. A person’s confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime. The judicial quest for truth requires that no person be convicted out of derangement, mistake or official fabrication.

Id. at 825 (footnote omitted) (emphasis added). Under this rule, the State is required to present evidence that a crime occurred and evidence establishing each element of the crime before the defendant’s confession can be admitted. Bradley v. State, 918 So.2d 337, 339 (Fla. 1st DCA 2005).

Corona was charged under section 794.011(2), Florida Statutes (2000). Section 794.011(2)(a) provides that “[a] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141.” Sexual battery is defined by the statute as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object,” but not any act done for a bona fide medical purpose. § 794.011(1)(h), Fla. Stat. (2002). Therefore, the State was required to present sufficient evidence that (1) Corona was at least eighteen years of age, (2) A.C. was less than twelve years of age, and (3) Corona committed oral sexual battery on A.C.

Notably, in this case, Deputy Avi-las’s testimony concerning A.C.’s statements was the only evidence of the penetration/union element of the capital sexual battery charge. Because we conclude that the victim’s statements should have been excluded from trial, it is clear that the remaining permissible evidence could not establish a prima facie case of the crime as charged. Thus, Corona’s statements or confession could not be properly admitted into evidence under the corpus delicti rule. See Burks v. State, 613 So.2d 441, 444 (Fla.1993) (“The corpus delicti cannot be proven solely by a confession or admission.”) (quoting Deiterle v. State, 101 Fla. 79, 134 So. 42, 43 (1931)); Snell v. State, 939 So.2d 1175, 1178 (Fla. 4th DCA 2006) (“Ordinarily, proof of the corpus delicti of the crime charged is required before a confession or admission against interest may be received in evidence.”) (quoting Garmon v. State, 772 So.2d 43, 46 (Fla. 4th DCA 2000)).

Thus, in this case, harmful error occurred not only because of the erroneous admission of A.C.’s statements, but also because of the erroneous admission of Corona’s statements and confession. During its opening statements, the State explained to the jury that they would hear testimony that Corona stated “I can’t believe I did that to my daughter” and confessed to the crime. At trial, Corona’s confession was described through the testimony of Officer Maikowski and Trooper Ewald. Moreover, the State heavily relied on Corona’s confession, noting that it corroborated A.C.’s statements. During its closing, the State commented that Corona’s confession was “very consistent” with A.C.’s statements. Finally, in addition to commenting on the victim’s statements and Victoria’s statements, the State remarked, “|Y]ou have the defendant’s confession. He admitted to doing this. Find him guilty because he is guilty.” The record demonstrates that the impermissible evidence of A.C.’s statements, together with Corona’s statements, was the lynchpin in the State’s case. Because this evidence should have been excluded and there was minimal additional evidence on which to convict Corona, we cannot say beyond a reasonable doubt that the error of admitting A.C.’s statements and Corona’s statements did not affect the verdict. Thus, harmful error occurred in this case and Corona is entitled to a new trial.

CONCLUSION

In light of the above, we quash the decision of the Fifth District and remand to the district court with directions to vacate Corona’s conviction and sentence and order a new trial. See Pacheco v. State, 698 So.2d 593, 596 (Fla. 2d DCA 1997) (quoting Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)) (“[R]etrial is permitted when ‘a reviewing court determines that a defendant’s conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction.... ’ ”).

It is so ordered.

PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

POLSTON, J., concurs in result.

CANADY, C. J., dissents with an opinion.

CANADY, C.J.,

dissenting.

Because Corona failed to properly preserve the Confrontation Clause issue on which the majority relies for quashing the decision on review, I dissent. Under then applicable law, to preserve the confrontation clause issue, Corona was required— notwithstanding any adverse pretrial ruling — to make a specific Confrontation Clause objection at trial. See Spann v. State, 857 So.2d 845, 852 (Fla.2003) (requiring specific objection at trial to preserve issue for appeal); Feller v. State, 637 So.2d 911, 914 (Fla.1994) (holding that defendant who “failed to renew his confrontation clause objection when [evidence] was actually offered at trial” failed to preserve the Confrontation Clause issue for appellate review). Corona’s general hearsay objection at trial was therefore insufficient to preserve the Confrontation Clause issue. Furthermore, I agree with the Fifth District’s conclusion that the unpre-served error was not fundamental. Corona’s conviction and sentence should be upheld.

      . Testimony supporting the State’s attempts was later presented at trial to the jury.

      . Deputy Avilas understood this term to mean vagina.

      . Maikowski testified that he also advised Corona of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In her subsequent testimony, Trooper Ewald testified that she also administered the Miranda warnings. During trial, Corona disputed the accounts of both officers and stated that he did not receive the Miranda warnings. However, the issue has not been raised on review before this Court.

      .Although Maikowski used the phrase "genital area” and Ewald used the word “vagina," both officers admitted to paraphrasing the words used by Corona in his confession.

      . The record in this case shows that Corona was thirty-six years old at the time of the offense.

        . Our analysis to follow will focus on the statements made by the victim, A.C., although statements made by Victoria were also presented through the testimony of Avilas. The district court analyzed only the statements from A.C., stating that there was no testimony at trial concerning the incriminating statements made by Victoria. See Corona, 929 So.2d at 594, n. 5; but see Melendez-Diaz v. Massachusetts,- U.S. -, 129 S.Ct. 2527, 2533-34, 174 L.Ed.2d 314 (2009) (rejecting argument that forensic analysts were not subject to confrontation because they did not directly accuse the defendant of wrongdoing).
      There was testimony at trial that Victoria urged an officer to "go get him, arrest him [Corona].” Even if we were to consider her statements as testimonial, the admissibility of the statements depends on the purpose for which they were admitted. On remand the trial court should keep in mind that "[t]he [Confrontation] Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). However, if the jury is asked to infer that Victoria’s statements prove that Corona committed the sexual battery, and Victoria is not available for cross-examination, "Confrontation Clause concerns [are] implicated.” Street, 471 U.S. at 414, 105 S.Ct. 2078.

      . In addition to arguing that the admission of his statements violated corpus delicti, Corona argued that the trial court erred in denying his motion to suppress (1) his statements that were made after he was placed in the police vehicle in Chicago and (2) his later confession. Although Corona asserts that his police encounter in Chicago resulted in a Fourth Amendment violation and that his subsequent arrest was illegal, we disagree. Even if we were to agree that a seizure occurred, it was not unreasonable in this case for the police to isolate Corona for his own protection. Moreover, we conclude that his later arrest was lawful.

      . Corona’s trial was conducted before the July 1, 2003, effective date of the provision of section 90.104(1)(b), Florida Statutes (2003), that a renewed objection when evidence is offered at trial is not necessary if there has been a prior "definitive ruling” excluding the evidence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROBIN ROSHKIND, P.A., Petitioner, v. Belinda Charlene MACHIELA, Respondent.
    No. SC10-1754.
    Supreme Court of Florida.
    June 9, 2011.

      Robin Bresky and Jonathan Mann of the Law Office of Robin Bresky, Boca Raton, FL, and Robin Bogen Roshkind, West Palm Beach, FL, for Petitioner.
    E. Blake Paul and Stephen R. Senn of Peterson and Myers, P.A., Lakeland, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction to review Robin Roshkind, P.A. v. Machiela, 45 So.3d 480 (Fla. 4th DCA 2010), a decision of the Fourth District Court of Appeal certifying a question to be of great public importance pursuant to article V, section 3(b)(4) of the Florida Constitution. Upon further consideration, we have determined to deny review and discharge jurisdiction.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. CANADY, C.J., and PARIENTE, J., dissent.


author: PARIENTE, J. LEWIS, J.,

text:
    Linda CRAWFORD, Petitioner, v. Jannie BARKER, etc., Respondent.
    No. SC09-1969.
    Supreme Court of Florida.
    June 9, 2011.

      James L. Weintraub, Boca Raton, FL, for Petitioner.
    Thomas F. Pepe of Pepe and Nemire, P.A., Coral Gables, FL, for Respondent.
   PARIENTE, J.

Linda Crawford seeks review of the decision of the Third District Court of Appeal in Barker v. Crawford, 16 So.3d 901 (Fla. 3d DCA 2009), on the ground that it expressly and directly conflicts with a decision of the Fifth District Court of Appeal in Smith v. Smith, 919 So.2d 525 (Fla. 5th DCA 2005). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue, which is one of contract interpretation, is whether language in a marital settlement agreement, which specifically refers to a beneficiary-designated policy, plan, or account (such as a deferred compensation fund or life insurance policy), but does not state who is or is not to receive the death benefits and does not specify the beneficiary, trumps the predis-solution beneficiary designation on the policy, plan, or account.

For the reasons explained below, we hold that absent the marital settlement agreement providing who is or is not to receive the death benefits or specifying who is to be the beneficiary, courts should look no further than the named beneficiary in the separate document of the policy, plan, or account. General language in a marital settlement agreement, such as language stating who is to receive ownership, is not specific enough to override the plain language of the beneficiary designation in the separate document. The spouse, who owns the policy, plan, or account following the dissolution of marriage, is otherwise free to name any individual as the beneficiary; however, if the spouse does not change the beneficiary, the beneficiary designation in the separate document controls. Accordingly, we quash the Third District’s decision below and approve the Fifth District’s decision in Smith.

FACTS

Manuel Crawford and Linda Crawford were married in 1984. In 1993, Manuel opened a deferred compensation fund and listed Linda as the beneficiary. Then in August 2005, Manuel filed for divorce. During the divorce proceedings, Manuel was represented by an attorney, but Linda was not. The circuit court referred the parties to mediation. At mediation, the parties reached an agreement as to the distribution of their assets, including Manuel’s pension plan, deferred compensation fund, and annuity. The issue in this case pertains only to the death benefits of the deferred compensation fund. The signed Amended Family Mediation Unit Agreement provided in relevant part: “Husband shall retain retirement money with the Town of Surfside and the Deferred Compensation Fund f/ka/ [sic] Pepsco.”

The agreement also provided that the husband “shall retain annuity with Pacific Life.” The agreement did not contain a general waiver provision or any other provision referencing the pension, annuity, or the deferred compensation fund at issue in this case.

Manuel Crawford died approximately one year after the divorce was final. Prior to his death, he did not change the named beneficiary on the deferred compensation fund. His daughter, Jannie Barker, was appointed as personal representative of his estate. Barker filed an emergency motion for civil enforcement of the final judgment in the family law division of the circuit court. Specifically, she asserted that Linda Crawford had failed to comply with the final judgment because Linda made claims on property given to Manuel in the divorce proceedings, including retirement money. The circuit court referred the matter to a general magistrate.

The general magistrate held hearings but did not take evidence. During the hearing, the magistrate called the Town of Surfside human resources department, which indicated that the Town of Surfside pension plan had been paid to Barker. Prior to and at the hearings, the parties reached an agreement on all of the disputed property except for the deferred compensation fund with Nationwide Retirement Solutions at issue in this case, which the record indicated is the deferred compensation fund referred to in the agreement. The stipulation provided that Barker waived any claim to the Pacific Life annuity account and that those proceeds would be distributed to Linda Crawford as the listed beneficiary.

Following the hearings, the general master filed a report and recommendation finding that the death benefits of the deferred compensation fund with Nationwide Retirement Solutions should be paid to Jannie Barker, not Linda Crawford. The general magistrate found as follows:

5. The amended mediated settlement agreement that is incorporated into the final judgment of dissolution of marriage between the parties provides that “Husband shall retain retirement money with ... the Deferred Compensation Fund f/ka/ [sic] Pepseo.” The Deferred Compensation Fund with Pepseo is one and the same as the Deferred Compensation Fund with Nationwide Retirement Solutions which fund is at issue in this case.
6. During the course of the marriage, “Linda Crawford — wife” was named as the designated beneficiary of the Deferred Compensation Fund. However, Linda Crawford and Manuel R. Crawford agreed at the time of the signing of the amended mediated settlement agreement that Manuel R. Crawford should get the money from this fund and that he should be the beneficiary. Manuel R. Crawford could have reaffirmed the designation of Linda Crawford had he chosen to do so following the dissolution of marriage. The fact that he did not reaffirm Linda Crawford as the beneficiary of this account confirms his intent that he was the beneficiary of this fund and that the money from the fund remained his at all times following the dissolution.

The general magistrate ordered Linda Crawford to “execute all documents required by the Deferred Compensation Fund and Nationwide Retirement Solutions (‘Nationwide’) for the transfer of the Fund, held by Nationwide in the name of Manuel R. Crawford, to the Estate of Manuel R. Crawford.”

Linda Crawford filed exceptions to the general magistrate’s report and recommendation. She argued that no reference was made in the settlement agreement with regard to the disposition of her expectancy interests or her beneficiary rights. Thus, she contended, under this Court’s decision in Cooper v. Muccitelli (Cooper II), 682 So.2d 77 (Fla.1996), and the Fifth District’s decision in Smith v. Smith, 919 So.2d 525 (Fla. 5th DCA 2005), in the absence of specific reference in the agreement to the proceeds (or death benefits), the recipient is determined by looking only to the designated beneficiary.

The circuit court sustained Linda Crawford’s exceptions to the general magistrate’s report. The circuit court’s order stated: “This Court finds that no reference was made in the Amended Family Mediation Unit Agreement incorporated by reference into the Final Judgment of Dissolution of Marriage to the Respondent’s beneficiary rights to the proceeds of the subject deferred compensation account.” Accordingly, the circuit court ordered that Linda Crawford, as the designated beneficiary, was entitled to the proceeds of the deferred compensation fund.

Barker appealed the circuit court’s order to the Third District Court of Appeal. The Third District reversed the circuit court, agreeing instead with the general magistrate. The Third District’s opinion states in its entirety:

We summarily reverse the trial court’s “Order on Respondent’s Exceptions to General Master’s Report and Recommendations” insofar as it states, “This Court finds that no reference was made in the Amended Family Mediation Unit Agreement incorporated by reference into the Final Judgment of Dissolution of Marriage to the Respondent’s beneficiary rights to the proceeds of the subject deferred compensation account.” Instead, we conclude, based upon de novo review, the general master correctly construed the statement in the Amended (Short Form) Family Mediation Unit Agreement that “Husband shall retain retirement money with the Town of Surfside and the Deferred Compensation Fund f/k/a Pepsco,” was sufficient to waive the former husband’s pre-dissolution designation of the former wife as a beneficiary.

On this point, the general magistrate stated in his report and recommendation:

During the course of the marriage, “Linda Crawford — wife” was named as the designated beneficiary of the Deferred Compensation Fund. However, Linda Crawford and Manuel R. Crawford agreed at the time of the signing of the amended mediated settlement agreement that Manuel R. Crawford should get the money from this fund and that he should be the beneficiary. Manuel R. Crawford could have reaffirmed the designation of Linda Crawford had he chosen to do so following the dissolution of marriage. The fact that he did not reaffirm Linda Crawford as the beneficiary of this account confirms his intent that he was the beneficiary of this fund and that the money from the fund remained his at all times following the dissolution.
We conclude the general master’s analysis is the legally correct one. See Cooper v. Muccitelli, 682 So.2d 77 (Fla.1996); Smith v. Smith, 919 So.2d 525 (Fla. 5th DCA 2005).
Reversed and remanded.

Barker v. Crawford, 16 So.3d 901, 901-02 (Fla. 3d DCA 2009). Linda Crawford sought review by this Court.

ANALYSIS

The conflict issue involved in this case is whether language in a marital settlement agreement, which specifically refers to a beneficiary-designated policy, plan, or account, such as a deferred compensation fund, but does not state who is or is not to receive the death benefits and does not specify the beneficiary, trumps the predissolution beneficiary designation in the separate document. The issue in this case is one of contract interpretation and does not involve nuances of family law or a claim that the Employee Retirement Income Security Act of 1974 (ERISA) preempts state law in this case. A marital settlement agreement is a contract. Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997) (“It is well settled that a marital settlement agreement is subject to interpretation like any other contract.”); see also Cerniglia v. Cerniglia, 679 So.2d 1160, 1164 (Fla.1996) (evaluating a release contained within a marital settlement agreement under traditional contract principles). Likewise, the deferred compensation fund is a contract with the company administering the fund (here, Nationwide Retirement Solutions), and the designation of the beneficiary is a term of that contract. A deferred compensation fund “consists of funds already earned but for which payment is deferred. For equitable distribution purposes, a deferred compensation account is considered marital property to the extent it consists of contributions from funds earned during the marriage.” Ruberg v. Ruberg, 858 So.2d 1147, 1152 (Fla. 2d DCA 2003).

Our review of this case is de novo. See O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (Fla.2006). The magistrate did not make credibility determinations. Thus, we are on an equal footing with the magistrate to interpret the written documents. See Muir v. Muir, 925 So.2d 356, 358 (Fla. 5th DCA 2006) (“Interpretation of a marital settlement agreement is a matter of law and places the appellate court on an equal footing with the trial court as interpreter of the written document.”).

In resolving the conflict issue, we will first examine this Court’s decision in Cooper II, which sets the stage for resolution of issues involving marital settlement agreements and beneficiary-designated policies, plans, or accounts. Next, we will discuss the district courts of appeal decisions addressing the issue, including the conflict decision of Smith v. Smith, 919 So.2d 525 (Fla. 5th DCA 2005). Then, we will discuss why we hold that general language, such as a statement of who is to receive ownership of the policy, plan, or account, is not specific enough to override the plain language of a beneficiary designation in the separate document. Finally, we will apply the law to this case.

This Court’s Decision in Cooper II

In Cooper II, this Court considered the interpretation of a marital settlement agreement along with the contract for a life insurance policy. There, the husband designated his wife, Karin, as the primary beneficiary on two life insurance policies purchased during the marriage. Cooper II, 682 So.2d at 77-78. They divorced, and the separation agreement mutually released each party from any and all claims of the other, but did not mention the life insurance policies. Id. at 78. After the divorce, the husband changed the primary beneficiary on one of the policies to his stepdaughter. Id. However, he left the other policy with Academy Life Insurance Company unchanged, with Karin as the primary beneficiary and his wife, Sandra, as the secondary beneficiary. Id. Approximately a year after the divorce, the husband died and both Karin and Sandra claimed the proceeds of the policy. Id. Academy filed an interpleader to determine who was entitled to the proceeds. Id. The trial court ruled that Karin was entitled to the proceeds. Id.

On appeal, the Second District held that “without specific reference in a property settlement agreement to life insurance proceeds, the beneficiary of the proceeds is determined by looking only to the insurance contract.” Id. (quoting Cooper v. Muccitelli (Cooper I), 661 So.2d 52, 54 (Fla. 2d DCA 1995)). The district court recognized conflict with Davis v. Davis, 301 So.2d 154 (Fla. 3d DCA 1974), Aetna Life Insurance Co. v. White, 242 So.2d 771 (Fla. 4th DCA 1970), and Raggio v. Richardson, 218 So.2d 501 (Fla. 3d DCA 1969), wherein the courts looked beyond the life insurance policies to the settlement agreements. Cooper II, 682 So.2d at 78.

This Court granted review, approved Cooper I, and disapproved Davis, Aetna, and Raggio. The Court reviewed the language of the settlement agreement, in particular the provisions entitled “Mutual Release and Discharge of Claims in Estates” and “Mutual Release of General Claims.” Cooper II, 682 So.2d at 78. The Court also reviewed the language of the Academy policy designating the wife as the primary beneficiary. Id. at 79. Then, the Court stated:

We conclude that the plain language of the above documents controls. To the extent that Karin may have claimed a right to remain primary beneficiary under the Academy policy as a condition of the dissolution of marriage, she waived any such claim when she signed the above agreement. The agreement clearly states: “[E]ach party hereby waives ... all claims ... which he or she ... might have ... against the other.” Thomas was free to designate whomever he wished as beneficiary. To determine whom Thomas intended as beneficiary, we need look no further than the plain language of the policy itself: The primary beneficiary is Karin Pasquino. After signing the separation agreement, Thomas did just what he needed to do to ensure that the proceeds would go to Karin — he did nothing.
The analysis urged by Sandra, i.e., that the general language in the separation agreement trumps the specific language in the policy, would place Academy in an impossible position — the carrier could never be certain whom to pay in such a situation without going to court, in spite of what the policy said or how clearly it was worded.

Id. In a footnote, the Court noted: “Of course, a settlement agreement that specifically requires one of the parties to maintain a named individual as beneficiary will control the disposition of proceeds upon notice to the insurer.” Id. at 79 n. 1.

In Cooper II, this Court looked to the language of the marital settlement agreement and the life insurance contract, stating that the plain language of the documents controls. We held that general language in a marital settlement agreement, which did not mention the disputed policy, could not trump the specific language in the policy, which clearly designated the ex-wife as the beneficiary. Further, we recognized that without a specific requirement in the settlement agreement that he maintain a named individual as the beneficiary, the ex-husband had full control over the policy and could designate whomever he wished as the beneficiary.

District Court of Appeal Cases and the Conflict Issue

The district courts of appeal have extended the reasoning of Cooper II to beneficiary-designated policies, plans, and accounts other than life insurance policies. See Smith v. Smith, 919 So.2d 525 (Fla. 5th DCA 2005) (individual retirement account (IRA) and annuity accounts); Luszcz v. Lavoie, 787 So.2d 245 (Fla. 2d DCA 2001) (IRA); In re Estate of Dellinger, 760 So.2d 1016 (Fla. 4th DCA 2000) (IRA); Waller v. Pope, 715 So.2d 958 (Fla. 2d DCA 1998) (employee pension plan and credit union account). This is a logical extension of the rule announced in Cooper II, because an IRA, an annuity account, and an employee pension plan are analogous to a life insurance policy in that the owner of the policy or plan has to take specific steps to designate a beneficiary and death benefits pass directly to a beneficiary rather than going through probate. As explained by the Second District, sitting en banc and receding from a previous case that held to the contrary:

An IRA is a contract with an institution that involves a third-party beneficiary designation. The rights of a spouse who has been named a beneficiary of an IRA arise from that contract, not from the marital relationship. Further, a beneficiary’s rights to proceeds do not attach until the IRA owner’s death. Until then, the beneficiary merely has an expectancy in the IRA because until the owner’s death, the owner can do with the IRA as desired, including changing the beneficiary designation or cashing out the account altogether.

Luszcz, 787 So.2d at 248. We conclude that this reasoning extends to the deferred compensation fund at issue in this case.

The application of Cooper II is straightforward when the settlement agreement makes no mention of the disputed plan or policy, but rather contains language such as a general release. This is directly analogous to this Court’s decision in Cooper II, where the settlement agreement contained no mention of the life insurance policy, but rather only general releases. In such a situation, under Cooper II, the owner of the policy can designate whomever he or she wishes as the beneficiary, and the beneficiary designation controls. See, e.g., In re Estate of Dellinger, 760 So.2d at 1017; Waller, 715 So.2d at 960.

However, when the settlement agreement mentions the disputed policy or plan, the question then becomes whether the language in the settlement agreement is specific enough to override the predissolution beneficiary designation. We now turn to a discussion of two district court of appeal cases addressing such a situation— the Fifth District in Smith and the Second District in Luszcz. The Fifth and Second Districts came to a conclusion opposite to that of the Third District below.

In Smith, the Fifth District considered the effect of a settlement agreement that “identified the insurance policies in dispute, as well as various retirement plans.” 919 So.2d at 527. With regard to these policies and plans, the agreement stated: “Husband shall receive as his own and Wife shall have no further rights or responsibilities regarding these assets.” Id. At the time of the divorce, the wife was listed as the beneficiary of the policies and plans. Id. The settlement agreement also contained a general release of claims. Id.

About one and one-half years after the dissolution of marriage, the husband died without having changed the beneficiary on the policies and retirement plans. Id. The wife and the husband’s estate both made claims to the funds generated by the policies and plans. Id. The trial court held that the settlement agreement acted as a waiver of any right the former wife had to the disputed funds. Id.

On appeal, the Fifth District referred to Cooper II, stating:

The Florida Supreme Court affirmed, saying that a contrary holding would put insurance companies in an “impossible position.” Cooper v. Muccitelli, 682 So.2d 77, 79 (Fla.1996) (“Cooper II”). The high court pointed out that despite specific and clearly worded language in an insurance contract, a carrier could never be certain to whom to pay the proceeds. The lesson from Cooper I and Cooper II is that while it may be possible in a marital settlement agreement to waive one’s right as a beneficiary of insurance policies, that waiver can only be accomplished if the waiving party specifically gives up his or her rights to the “proceeds” of these policies.[] Otherwise, one must look only to the beneficiary designation made by the insured and filed with the insurer.

Id. at 527-28. With respect to the life insurance proceeds, the Fifth District held that the settlement agreement failed to make specific reference to the proceeds of the insurance policies and, therefore, the wife, as the listed beneficiary, was entitled to the proceeds. Id. at 528.

As to the retirement plans, the Fifth District concluded that “[t]he same result obtains with respect to IRA and retirement plan proceeds, as well.” Id. The Fifth District held:

Once again, the marital settlement agreement did not mention a disposition of the proceeds of the plans and accounts, and the decedent never changed the beneficiary designations. Under these circumstances, courts “need look no further than the plain language of the policy” to determine who the decedent intended as beneficiary of the proceeds.

Id.

The Second District has also addressed the situation where the settlement agreement specifically mentioned the disputed account; however, in that case the agreement divided the IRA between the husband and wife. Luszcz, 787 So.2d at 248. The marital settlement agreement in Luszcz provided that the ex-wife’s IRA would be divided, with the ex-husband receiving $11,165 and the wife receiving $31,835 of the IRA. Id. at 246-47. The settlement agreement did not include releases of claims by either spouse against the other. Id. at 246.

Prior to the divorce, the husband had been designated as the beneficiary of the wife’s account. Eight months after the final judgment of dissolution of marriage was entered, she died without changing the beneficiary on her portion of the IRA. Id. In holding that the ex-husband was entitled to the death benefits of the ex-wife’s portion of the IRA as the listed beneficiary, the Second District examined Cooper II and determined that Cooper II should be applied to IRAs as well:

[A] beneficiary’s rights to proceeds do not attach until the IRA owner’s death. Until then, the beneficiary merely has an expectancy in the IRA because until the owner’s death, the owner can do with the IRA as desired, including changing the beneficiary designation or cashing out the account altogether. See Waller v. Pope, 715 So.2d 958 (Fla. 2d DCA 1998); Cooper, 661 So.2d 52. Upon the IRA owner’s death, however, the beneficiary’s expectancy becomes an interest that attaches to the proceeds of the IRA, and those proceeds pass directly to the beneficiary; they do not pass through the estate. See Waller, 715 So.2d 958; Cooper, 661 So.2d 52. See also Graves v. Summit Bank, 541 N.E.2d 974 (Ind.Ct.App.1989).

Luszcz, 787 So.2d at 248. The Second District concluded that “[u]nless the dissolution judgment requires a spouse to name a particular beneficiary as a condition of a dissolution of marriage, the owner of the IRA is free to name whomever desired as the beneficiary.” Id. Therefore, “[u]pon the IRA owner’s death, the institution need look no further than the IRA contract to determine the beneficiary.” Id. The Second District reasoned:

Otherwise, as pointed out by the supreme court in Cooper, the institution could never be certain whom to pay and would nearly always have to resort to going to court. In the end, it is the IRA owner’s responsibility to change the beneficiary designation if a change is desired. Some marriages do end amicably and with a spouse desiring to maintain an ex-spouse as a beneficiary.

Id. (footnote omitted).

As discussed above, both the Fifth and Second Districts have held, albeit with differing reasoning, that when a marital settlement agreement mentions the disputed policy or plan, but does not specifically mention who should receive the death benefits (Smith) or does not require a spouse to name a particular beneficiary as a condition of dissolution of marriage (Luszcz), the reviewing court should look no further than the named beneficiary. These conclusions follow because, as explained in both opinions, the owner of the policy, plan, or account is free to designate whomever he or she chooses as the beneficiary. Smith, 919 So.2d at 529-30 (“[U]ntil the owner’s death, the owner can do with the [account] as desired, including changing the beneficiary designation or cashing out the account all together.” (quoting Luszcz, 787 So.2d at 248)); Luszcz, 787 So.2d at 248 (“Unless the dissolution judgment requires a spouse to name a particular beneficiary as a condition of a dissolution of marriage, the owner of the IRA is free to name whomever desired as the beneficiary.”). Therefore, absent a change in the designation following the dissolution of marriage, the previous designation controls.

In contrast, the Third District would require that the owner reaffirm his or her designation of the spouse after the dissolution of marriage. The Third District held that language referring to Manuel Crawford “retain[ing] retirement money” with the deferred compensation fund was “sufficient to waive the former husband’s pre-dissolution designation of the former wife as a beneficiary,” Barker, 16 So.3d at 901, and that the fact that Manuel Crawford “did not reaffirm Linda Crawford as the beneficiary of this account confirms his intent that he was the beneficiary of this fund and that the money from the fund remained his at all times following the dissolution.” Id. at 902 (quoting magistrate’s report).

Resolving the Conflict

A marital settlement agreement and a deferred compensation fund are both contracts and subject to contract interpretation principles. Where the terms of a contract are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document. Levitt v. Levitt, 699 So.2d at 757; see also Sheen v. Lyon, 485 So.2d 422, 424 (Fla.1986) (stating that when the language of a contract “is clear and unambiguous[,] a court cannot entertain evidence contrary to its plain meaning”). In such a situation, “the language itself is the best evidence of the parties’ intent, and its plain meaning controls.” Richter v. Richter, 666 So.2d 559, 561 (Fla. 4th DCA 1995). This Court in Cooper II examined the language of the settlement agreement and the life insur-anee contract and concluded that “the plain language of the ... documents controls.” Cooper II, 682 So.2d at 79. Specifically, the Court held: “To the extent that Karin may have claimed a right to remain primary beneficiary under the Academy policy as a condition of the dissolution of marriage, she waived any such claim when she signed the above agreement.... Thomas was free to designate whomever he wished as beneficiary. To determine whom Thomas intended as beneficiary, we need look no further than the plain language of the policy itself....” Id. (emphasis added).

The Fifth District in Smith held that without specific reference to who would receive the death benefits of the subject polices or plans, the settlement agreement was not sufficient to override the predisso-lution designation of beneficiary. Smith, 919 So.2d at 529-30. The Second District in Luszcz reasoned that without a requirement in the settlement agreement to maintain a particular named beneficiary, the owner of the policy, plan, or account can name anyone he or she chooses as the beneficiary and that designation should control. Luszcz, 787 So.2d at 248. Thus, both Smith and Luszcz hold that a reference to a beneficiary-designated policy, plan, or account in a settlement agreement, without clear reference to who should receive the death benefits upon the death of the owner, does not trump the specific and plain language of the beneficiary designation. The decisions of the Fifth District in Smith and the Second District in Luszcz are consistent with this Court’s rationale in Cooper II to view settlement agreements as well as the terms of beneficiary-designated policies, plans, or accounts as contracts and to apply the plain language of those documents.

We conclude that the general magistrate’s reasoning and the Third District’s decision ignore the language of the settlement agreement (which states that Manuel Crawford is to retain the “retirement money” but does not refer to the death benefits or designate who should be the beneficiary) and the deferred compensation fund contract (which clearly lists Linda Crawford as the beneficiary). The practical effect of the Third District’s decision is that a divorce would revoke an ex-spouse’s status as the beneficiary if the settlement agreement identifies the policy, plan, or account unless the owner reaffirms the ex-spouse as the beneficiary. However, this view would accomplish an automatic revocation of a beneficiary designation, even when such a revocation was not contemplated by the parties and is not indicated by the plain language of the agreement.

Absent the marital settlement agreement providing who is or is not to receive the death benefits or specifying the beneficiary, courts should look no further than the named beneficiary on the policy, plan, or account. General language such as language stating who is to receive ownership is not specific enough to override the plain language of the beneficiary designation. Magic words are not required; however, if the parties wish to specify in a marital settlement agreement that a spouse will not receive the death benefits or wish to specify a particular beneficiary, this should be done clearly and unambiguously. Otherwise, the unifying principle of Cooper II, Smith, and Luszcz applies— that the spouse who receives the policy, plan, or account as part of the marital settlement agreement is free to designate whomever he or she chooses as the beneficiary.

This Case

We now apply the rule of law to this case. Here, the settlement agreement provided: “Husband shall retain retirement money with” the deferred compensation fund. The agreement did not state who would receive the death benefits or who should be the beneficiary of the deferred compensation fund. However, the contract with Nationwide Retirement Solutions clearly designated Linda Crawford as the beneficiary. Accordingly, looking to the plain language of these documents, the beneficiary designation controls.

Barker contends that by implication, when one party agrees that the other party is to receive the proceeds of the deferred compensation fund, the first party by reason of the agreement waives his or her right to the proceeds. However, Barker’s argument concerning implied waiver fails because the settlement agreement in this case did not specify that Manuel Crawford was to receive the proceeds, or death benefits, of the deferred compensation fund.

Barker further asserts that in light of the entire agreement in this case, the provision clearly meant the interpretation given to it by the general magistrate and Third District. However, nowhere in the settlement agreement is it mentioned who is or is not to receive the death benefits of the deferred compensation fund or who should be the beneficiary. Further, the agreement does not contain a general release clause — thus, there is no additional language that the Court could potentially factor into its analysis. Rather, the agreement simply divides the marital property and decides the parties’ rights with respect to alimony and attorneys’ fees.

In sum, we conclude, after reviewing the language of the marital settlement agreement, that the agreement gave Manuel Crawford ownership of the deferred compensation fund. As the owner, he had the right to designate the beneficiary of his choosing under the terms of the agreement — he was not obligated by the agreement to either maintain or change the beneficiary, and the agreement did not specify who was or was not to receive the death benefits. Thus, because the beneficiary designated on the deferred compensation fund is Linda Crawford, she is entitled to the death benefits.

CONCLUSION

For the foregoing reasons, we quash the Third District’s decision in Barker v. Crawford, 16 So.3d 901 (Fla. 3d DCA 2009), and approve the decision of the Fifth District in Smith v. Smith, 919 So.2d 525 (Fla. 5th DCA 2005), to the extent that it is consistent "with this opinion.

It is so ordered.

CANADY, C.J., and QUINCE, POLSTON, and LABARGA, JJ., concur.

LEWIS, J., dissents with an opinion, in which PERRY, J., concurs.

LEWIS, J.,

dissenting.

I dissent because I agree with the logical, sound recommendation articulated by the general magistrate and accepted by the Third District Court of Appeal below:

During the course of the marriage, “Linda Crawford — wife” was named as the designated beneficiary of the Deferred Compensation Fund. However, Linda Crawford and Manuel R. Crawford agreed at the time of the signing of the amended mediated settlement agreement that Manuel R. Crawford should get the money from this fund and that he should be the beneficiary. Manuel R. Crawford could have reaffirmed the designation of Linda Crawford had he chosen to do so following the dissolution of marriage. The fact that he did not reaffirm Linda Crawford as the beneficiary of this account confirms his intent that he was the beneficiary of this fund and that the money from the fund remained his at all times following the dissolution.

Barker v. Crawford, 16 So.3d 901, 901-02 (Fla. 3d DCA 2009).

I cannot join my colleagues in the majority because the decision today penalizes would-be litigants who turn to mediation as an alternative, cost-efficient form of dispute resolution in domestic matters. Mediation is designed and intended to be an informal mechanism that parties can utilize as an alternative to the formalistic rigors of litigation. See § 44.1011, Fla. Stat. (2010) (defining mediation as “an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement.” (emphasis supplied)). The majority decision now requires parties that participate in mediation to specify not only the allocation of specific assets, but also the allocation of those assets as they may exist in a future legal state. In essence, the majority opinion presumes that any asset mentioned in mediated settlement is presumed to be a life interest in that asset, as opposed to the more logical conveyance in fee simple absolute.

Mediation can only achieve the goal of “helping the disputing parties reach a mutually acceptable and voluntary agreement” if the intent of the parties is honored, as opposed to a court changing the effect of a mediated agreement. A plain reading of the mediated settlement agreement reached here indicates a clear intent to allocate the deferred compensation fund to the husband, for not only the duration of the husband’s life but for all time and all purposes. The Family Mediation Unit Agreement provided that the wife received a car, four acres of undeveloped land, and all interests associated with a business, including property used for that business. The agreement provided that the husband received a car, residential property, a boat, an annuity, interests associated with his life insurance policy, and all “retirement money with the Town of Surfside and the Deferred Compensation Fund fik/a Pep-sco” without limitation. The parties, who did not have any minor children of the marriage, also waived any and all rights to alimony. A plain reading of the terms of this agreement yield one undeniable conclusion: the couple intended to split their assets absolutely and go their separate ways. To allow the wife to collect the posthumous benefits associated with the husband’s deferred compensation funds is contrary to the intent of both the husband and the wife at the time the mediated settlement agreement was entered into.

An application of the majority decision yields an absurd result. If the husband here were to have suffered from an untimely demise immediately after he entered into the mediation agreement, but before it was physically possible for him to amend any pre-dissolution papers, the majority opinion would still require that pre-dissolution documents trump the mediation agreement. This flawed interpretation is contrary to the informal nature of mediation, which should be viewed through a different, less rigid prism than one used to scrutinize a lawyer-drafted and revised settlement agreement that is a product of traditional negotiations and formalized lawyer-drafted documents and litigation. The majority disregards the crystal clear intent of the parties in favor of a rigid application of pre-dissolution circumstances that were clearly intended to be superseded and overridden by the settlement agreement reached in mediation. This decision is inconsistent with the informal nature of mediation and will certainly discourage future divorcees from considering mediation and the short, less formal paperwork as an effective alternative to costly litigation. Accordingly, I dissent.

PERRY, J., concurs.

      . Jannie Barker was later substituted for Manuel Crawford for purposes of enforcing the final judgment.

      . The magistrate stated that he was not taking this information as evidence.

      . See Egelhoff v. Egelhoff, 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (discussing when ERISA will preempt state law regarding the death benefits of an ERISA plan).

      . In Luszcz, 787 So.2d at 248, the Second District receded from its previous decision in Vaughan v. Vaughan, 741 So.2d 1221, 1223 (Fla. 2d DCA 1999), in which it had distinguished and declined to apply Cooper II on two bases: (1) the insurance policy in Cooper was a term policy with no cash value and did not constitute a marital asset, unlike an IRA account; and (2) in Cooper II, there was no reference to the insurance policy in the settlement agreement, whereas in Vaughan, the settlement agreement divided the IRA as a marital asset.

      [n.1] Obviously, some other language such as "death benefits” would likely suffice.

      . Specifically, the agreement stated the following: (a) there are no minor children of the marriage; (b) the husband shall receive the marital residence; (c) the parties waive rights to alimony; (d) the parties are responsible for paying their own costs and attorneys’ fees; (e) the wife retains possession of the Ford van and the husband retains possession of the Chevy Suburban; (f) the husband will receive property in Tennessee; (g) the husband will receive the boat and trailer; (h) the wife will retain ownership interest in a business as well as the buildings used in the business; (i) the husband shall retain retirement money and an annuity; (j) the husband retains all interest in a life insurance policy and bank account; and (k) the parties will file a joint tax return for the previous year.


text:
    STATE of Florida, Appellant, v. Ronald THOMPSON, Appellee.
    No. 1D10-1841.
    District Court of Appeal of Florida, First District.
    July 12, 2011.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellant.
    Steven Brian Whittington of Whitting-ton & Culbert, P.A., Green Cove Springs, for Appellee.
   PER CURIAM.

Reversed and remanded for resentenc-ing. See State v. Thompson, 4 So.3d 689, 690 (Fla. 1st DCA 2009) (“We agree with the State’s argument that imposition of the 20-year minimum mandatory sentence is required by law. Whether imposition of the 20-year mandatory term would be a ‘crime in itself,’ as stated by the trial court, is a matter directed to the legislature.” (footnote omitted)).

BENTON, C.J., DAVIS, and THOMAS, JJ., concur.


text:
    Sedrick YOUNGBLOOD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1436.
    District Court of Appeal of Florida, Third District.
    July 13, 2011.
    Sedrick Youngblood, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. Debuisson v. State, 947 So.2d 531 (Fla. 3d DCA 2006).


text:
    James Edward DANIELS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1422.
    District Court of Appeal of Florida, Third District.
    July 13, 2011.

      James Edward Daniels, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and ROTHENBERG and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: CRENSHAW, Judge.

text:
    Michelle BERTHIAUME, Appellant, v. JUSTICE ADMINISTRATIVE COMMISSION, Appellee.
    No. 2D10-4485.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.
    Michelle Berthiaume, pro se.
    Stephen M. Presnell, General Counsel, and Christian D. Lake, Assistant General Counsel, Tallahassee, for Appellee.
   CRENSHAW, Judge.

Michelle Berthiaume served as private, court-appointed counsel to a criminal defendant and filed a motion for attorney’s fees pursuant to section 27.5304, Florida Statutes (2009), to receive compensation for her representation. She now challenges the summary denial of her motion, and we treat the appeal as a petition for certiorari. See Justice Admin. Comm’n v. Peterson, 989 So.2d 663, 665 (Fla. 2d DCA 2008). We conclude, and the Justice Administrative Commission (JAC) concedes, that the trial court departed from the essential requirements of law by summarily denying Berthiaume’s motion for attorney’s fees. We grant the petition, quash the trial court’s order denying the motion for fees, and remand for further proceedings.

When Berthiaume filed her motion pursuant to section 27.5304(12)(a), requesting fees in excess of the statutory limits, the JAC objected to the proposed billing, and the trial court scheduled a hearing on the motion. On the day of the hearing, scheduled for 10:30 a.m., Berthiaume failed to appear by 10:45 a.m. Because of Berthi-aume’s failure to appear, the trial court— without further inquiry — summarily denied her motion for attorney’s fees. Ber-thiaume’s motion for rehearing offered an explanation for her absence, but it was also summarily denied by the court.

Section 27.5304(12)(b) requires the trial court to (1) hold an evidentiary hearing on a motion to exceed the fee limits and (2) enter a written order detailing the trial court’s findings. Further, Florida courts have a longstanding policy of adjudication of disputes on the merits. See, e.g., Kubel v. San Marco Floor & Wall, Inc., 967 So.2d 1063, 1064 (Fla. 2d DCA 2007) (remanding for adjudication of the lawsuit on the merits where the trial court had dismissed a negligence claim based upon a finding that plaintiff committed fraud on the court). Here the trial court departed from the essential requirements of law because it failed to make the required findings based on the merits of Berthiaume’s motion.

Petition granted.

NORTHCUTT and BLACK, JJ„ Concur.


author: BLACK, Judge.

text:
    Davel M. ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5094.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.
   BLACK, Judge.

Davel M. Ross appeals an order summarily denying the three claims in his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the summary denial of all three claims; however, we reverse for the postconviction court to address the merits of Mr. Ross’ amended motion, which was filed after the original motion, within the two-year time period, and prior to the trial court’s ruling on the original motion. See Pritchett v. State, 884 So.2d 417, 418 (Fla. 2d DCA 2004).

Affirmed in part; reversed in part.

NORTHCUTT and CRENSHAW, JJ., Concur.


author: VILLANTI, Judge.

text:
    In the Interest of J.L.R., JR., and N.R., children. S.W-R., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D10-5391.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.

      David A. Dee, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   VILLANTI, Judge.

S.W-R., the mother, challenges the circuit court’s order placing two of her children, J.L.R., Jr., and N.R., in a permanent guardianship with their maternal grandmother. We affirm all aspects of the order except as to the visitation schedule between S.W-R. and the children. On that single point, we reverse and remand for further proceedings.

Section 39.6221(2)(c), Florida Statutes (2010), requires the circuit court’s written order to “[sjpecify the frequency and nature of visitation or contact between the child and his or her parents.” This plain language mandates that the court establish a specific visitation schedule rather than leaving visitation to the discretion of either of the parties. See R.N. v. Dep’t of Children & Family Servs., 55 So.3d 685, 685-86 (Fla. 2d DCA 2011). An order that does not comply with the requirements of section 39.6221 must be reversed. See, e.g., J.S. v. Dep’t of Children & Family Servs., 18 So.3d 712, 714 (Fla. 2d DCA 2009); R.T., Sr. v. Dep’t of Children & Families, 27 So.3d 195, 196 (Fla. 5th DCA 2010).

In this case, over S.W-R.’s objection, the circuit court failed to “[sjpecify the frequency and nature of visitation or contact between” S.W-R. and her children. Instead, in a somewhat ambiguous fashion, the written order provides for visitation biweekly for an hour to an hour and a half “or at the discretion of the caregiver.” Thus, the order places complete discretion concerning the frequency and duration of visitation with the maternal grandmother. Aside from the violation of the statutory language, this order creates a significant problem in this case in which S.W-R. has a strained relationship with the maternal grandmother. And the court’s oral suggestion that the parties “compromise” does not provide any guidance to the parties as to the court’s intent concerning the extent of the maternal grandmother’s discretion.

Therefore, we reverse the circuit court’s order appointing a permanent guardian to the extent that it leaves the nature and frequency of any visitation between S.WR. and the children to the maternal grandmother’s unfettered discretion and remand for the trial court to delineate S.W-R.’s visitation rights with her children in accordance with section 39.6221(2)(c).

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and WALLACE, JJ„ Concur.


text:
    Steven ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-550.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.
    Steven Roberts, pro se.
   PER CURIAM.

Steven Roberts appeals the summary denial of his motion for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Mr. Roberts claimed that he is entitled to an additional twenty-nine days of jail credit in case number 10-CF-02670.

On September 14, 2010, Mr. Roberts was sentenced in case number 10-CF-02670 to concurrent terms of thirty months’ imprisonment and twenty-four months’ probation and awarded 222 days of jail credit. Mr. Roberts subsequently filed this motion pursuant to rule 3.800(a), alleging that he should have been awarded a total of 251 days of jail credit. In its order, the postconviction court noted that Mr. Roberts is entitled to credit against each sentence only for the time actually spent in jail on the charge leading to that sentence. See White v. State, 940 So.2d 1165, 1165 (Fla. 2d DCA 2006); Keene v. State, 500 So.2d 592, 593 (Fla. 2d DCA 1986). Relying on records indicating that Mr. Roberts was charged in case number 10-CF-02670 on February 5, 2010, the postconviction court held that Mr. Roberts had received the proper amount of jail credit.

In his brief, Mr. Roberts challenges this finding by claiming that the postconviction judge, who was also the sentencing judge, misinterpreted the records. In support of this argument, Mr. Roberts points out that the record indicates that he was taken into custody on January 7, 2010, and remained there until sentencing. Furthermore, he claims that this arrest was for offenses that were later enhanced or amended to create case number 10-CF-02670. Therefore, even if he was not officially charged in that case until February 5, 2010, he was taken into custody on the underlying offenses nearly a month earlier. Mr. Roberts correctly argues that custody of a defendant should be considered from the date of his initial arrest. See Bronk v. State, 25 So.3d 701, 708 (Fla. 2d DCA 2010). Finally, the Pinellas County Sheriffs Office report supports Mr. Roberts’ assertions. The report lists a total of thirteen charges brought against Mr. Roberts on January 7, 2010, including charge four, which was incorporated into case number 10-CF-02670.

Due to the contradictory nature of the records in this case, we reverse and remand for the postconviction court to either attach portions of the record conclusively refuting Mr. Roberts’ claims or grant Mr. Roberts an additional twenty-nine days of jail credit in case number 10-CF-02670.

Reversed and remanded.

WHATLEY, LaROSE, and CRENSHAW, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Willie Ben HART, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-560.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.
    Willie Ben Hart, Jr., pro se.
   KHOUZAM, Judge.

We reverse the denial of Willie Ben Hart, Jr.’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 because the postconviction court erred when it denied the motion as untimely.

On December 18, 2007, Mr. Hart admitted to a violation of probation, and on January 3, 2008, the trial court entered an order revoking Mr. Hart’s probation and sentenced him to fifteen years’ imprisonment. Mr. Hart filed a timely notice of appeal, and on December 2, 2008, this court issued a mandate affirming his judgment and sentence. On December 2, 2010, Mr. Hart filed his motion for postconviction relief pursuant to rule 3.850, which the postconviction court denied shortly thereafter.

In denying his motion as untimely, the postconviction court noted that Mr. Hart was sentenced on January 3, 2008, and found that although he filed a direct appeal, he did not specifically challenge the revocation of his probation. The postcon-viction court found that Mr. Hart’s judgment and sentence became final on February 2, 2008, thirty days after being issued. The postconviction court further reasoned that Mr. Hart’s motion of December 2, 2010, was filed outside of the rule 3.850 two-year time limit. See Fla. R.Crim. P. 3.850(b). However, while Mr. Hart’s appeal did not specifically dispute the revocation of his probation, it did challenge whether the court erred in accepting his admission to the violation. Therefore, his appeal tolled the finalization of the judgment and sentence entered as a result of the revocation of his probation until the mandate on direct appeal was issued on December 2, 2008. See Cabrera v. State, 721 So.2d 1190, 1191 (Fla. 2d DCA 1998). Because Mr. Hart filed his motion on December 2, 2010, he was just within the two-year time limit.

Accordingly, we reverse this order. On remand, the postconviction court is instructed to address Mr. Hart’s claims on the merits.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ., Concur.


text:
    Fritz BAPTISTE, Petitioner, v. David F. HARVEY, Sheriff of Wakulla County, Florida, and Jared Miller, Major, Wakulla County Jail, Respondents.
    No. 1D11-3486.
    District Court of Appeal of Florida, First District.
    July 15, 2011.
    Robert L. Sirianni, Jr., Paetra T. Brownlee, and Julianne K. Bailey of Brownstone, P.A., Winter Park, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    Kirk D. HARRIS, Appellant, v. Nekisha D. HARRIS, Appellee.
    No. 1D11-1446.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Kirk D. Harris, pro se, Appellant.
    Nekisha D. Harris, pro se, Appellee.
   PER CURIAM.

The Court has determined that the lower tribunal’s March 15, 2011, Order is not a final order because it fails to resolve the issues of parental time-sharing and parental responsibility. Cf. Ward v. Bragg, 957 So.2d 670 (Fla. 1st DCA 2007) (dismissing appeal for lack of jurisdiction where order on appeal contemplated additional hearing on visitation). Accordingly, the appeal is hereby dismissed as premature. The dismissal is without prejudice to the appellant’s right to seek review upon entry of a final order.

BENTON, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Terri Lynn BROWN, Appellant, v. Patricia A. COLLER, Appellee.
    No. 1D11-0381.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Terri Lynn Brown, pro se, Appellant.
    Jack M. Ross of Siegel Hughes & Ross, Gainesville, for Appellee.
   PER CURIAM.

The Appellee’s Motion to Dismiss as an Improper Appeal from a Non-Final Order, filed February 15, 2011, is granted. The appeal is DISMISSED. See Jensen v. Whetstine, 985 So.2d 1218 (Fla. 1st DCA 2008); Massachusetts Life Ins. Co. v. Crapo, 918 So.2d 398 (Fla. 1st DCA 2006).

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


text:
    Myrna MURISON and William Murison, Petitioners, v. CORAL PARK PROPERTIES, INC., a Florida Corporation, Respondent.
    No. 4D10-198.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.

      Val L. Osinski and Julie M. Osinski of the Law Offices Of Val L. Osinski, Coral Springs, for petitioners.
    Timothy D. Lucero of Lucero Law Group, Coral Springs, for respondent.
   PER CURIAM.

Myrna and William Murison (the “Murisons”) appeal the trial court’s order dated December 15, 2009, in which the trial court denied the Murisons’ exceptions to the magistrate’s report because it believed them to be untimely and also because the Murisons had not provided the trial court with transcripts from the magistrate hearing. An order denying exceptions to a magistrate’s report is a non-final order and not directly appealable. However, we treat the appeal as a petition for writ of certiorari and grant the writ. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”); Yoxsimer v. Yoxsimer, 918 So.2d 997, 998 & n. 1 (Fla. 2d DCA 2006) (treating an appeal of a denial of exceptions to a magistrate’s report as a petition for writ of certiorari).

First, the trial court erred when it determined that the Murisons’ exceptions were untimely. The certificate of service date on the exceptions was March 2, 2009, the last day for the Murisons to serve exceptions under Florida Rule of Civil Procedure 1.490(h). “[Sjervice by mail is considered complete upon mailing, and the certificate of service is prima facie proof of the service.” Calderon v. Calderon, 26 So.3d 688, 689 (Fla. 5th DCA 2010).

Second, the trial court erred when it denied the exceptions without a hearing, because the Murisons had not yet provided the trial court with transcripts from the magistrate’s hearing. “Appellate courts throughout this state have uniformly interpreted rule 1.490(h) to require a mandatory hearing before the trial court on the parties’ exceptions if one is requested.” Yoxsimer, 918 So.2d at 998 (citation and quotation omitted). While the Murisons were obligated to provide transcripts to the trial court before any hearing on the exceptions could be held, the trial court was not permitted to deny the exceptions — and the right to a hearing — merely because the Murisons had not provided transcripts up to that point. Had the trial court received indication from the Muri-sons that they were refusing to provide transcripts, then the trial court would be on solid ground in denying the exceptions without a hearing. However, the trial court could not deny the Murisons their unambiguous right to a hearing on timely filed exceptions simply because transcripts had not been provided up to that point.

The trial court’s denial of the Murisons’ timely exceptions without a hearing deprived them of due process and constituted a departure from the essential requirements of the law. Additionally, because an order incorporating the magistrate’s report — conditioned upon no timely exceptions — was already issued by the trial court and the time to appeal that final order has passed, the harm to the Muri-sons is irreparable and cannot be remedied on direct appeal.

We, therefore, grant the petition for writ of certiorari and quash the order dated December 15, 2009, in which the trial court denied the Murisons’ exceptions without a hearing, and remand for further proceedings consistent with this opinion.

POLEN, HAZOURI and CIKLIN, JJ., concur.