author: SAWAYA, J.

text:
    Arturo Rafael HERNANDEZ, Appellant, v. Sandra HERNANDEZ, Appellee.
    No. 5D09-1632.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.
    Rehearing Denied April 8, 2011.

      Shannon McLin Carlyle and Kelly L. Rooth of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Michael B. Jones, Robert J. Wheelock, Eric Lee Bensen, and Cynthia M. Winter, of The Wheelock Law Firm, LLC, Orlando, for Appellee.
   SAWAYA, J.

Arturo Rafael Hernandez (“Husband”) appeals the Final Judgment dissolving his marriage to his former wife, Sandra Hernandez (‘Wife”). We affirm in part, reverse in part, and remand for further proceedings.

The facts and circumstances that led to the parties’ marital discord are not important to resolution of the issues before us. Suffice it to say that after the parties separated and Husband filed his Petition for Dissolution of Marriage, they attempted to mediate their differences, but the court-ordered mediation proved unsuccessful. The parties proceeded to final hearing, which resulted in the Final Judgment we now review.

The Final Judgment requires, among other things, that Husband pay: 1) rehabilitative alimony for a period of 48 months, in the amount of $1,100 per month for the first year, $2,200 per month for the subsequent two years, and $1,100 for the fourth year; 2) child support in the amount of $1,261 per month; 3) mortgage payments in the amount of $5,000 per month until the marital home is sold; and 4) miscellaneous debt payments of $1,068 per month. Husband argues that the lack of evidence or testimony presented at the final hearing requires the Final Judgment be reversed in its entirety. Alternatively, Husband challenges particular aspects of the Final Judgment, contending that: the total amount of the payments he is required to make exceed his monthly net income; the trial court erred in awarding rehabilitative alimony; and the trial court erred in failing to award him any credits or setoffs regarding the total amount of the mortgage payments he makes prior to the sale of the marital home.

As to the argument that the Final Judgment in its entirety must be reversed, the record reveals that the final hearing was conducted much like a mediation proceeding, with the trial judge engaging in a dialogue with the attorneys and the parties regarding what they would or would not agree to. In Aziz v. Aziz, 45 So.3d 975 (Fla. 2d DCA 2010), the Second District Court addressed a similar situation and concluded:

In an apparent effort to accomplish something useful at the hearing, the circuit judge shifted the conduct of the hearing to a mediation-style discussion of the parties’ positions, the content of their financial affidavits, and other matters. The attorneys did not object to this unusual approach to the temporary hearing. But it resulted in a record lacking actual evidence, stipulations, or express findings of fact. Such an informal approach to the temporary hearing may have seemed reasonable under the circumstances, but it did not result in a record facilitating appellate review.

Id. at 976-77 (footnote omitted). The court further observed that “ ‘unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.’ ” Id. at 978 (quoting Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006)). Stipulations and agreements between the parties, however, may be binding and enforced by the court. See Yeakle v. Yeakle, 12 So.3d 884, 885-86 (Fla. 4th DCA 2009); Steiner v. Steiner, 638 So.2d 174, 175 (Fla. 1st DCA 1994); Armstrong v. Armstrong, 623 So.2d 1216, 1217 (Fla. 4th DCA 1993); Rhoden v. Rhoden, 538 So.2d 1274, 1275 (Fla. 1st DCA 1988).

We agree with Husband that there was little, if any, evidence or testimony presented at the final hearing. This deficiency does not require reversal of the Final Judgment in its entirety because the transcript of the hearing reveals that Husband agreed with Wife regarding certain rulings contained in the judgment. However, as previously mentioned, Husband alternatively challenges several parts of the judgment, contending that he did not agree to those parts, they are not supported by evidence in the record, or there are insufficient factual findings in the final judgment.

As to Husband’s contention that the total amount of his payments exceed his net income, we note at the outset that Husband agreed to pay child support, and he does not contest the amount of the ordered payments. Accordingly, that part of the Final Judgment is affirmed without further discussion. Husband simply argues that when the amount of his other financial obligations are added to the amount of the child support he agreed to pay, the total amount exceeds his net monthly income. He, therefore, argues that the other payments must be reduced. The trial court failed to make any finding regarding the amount of Husband’s monthly income and no stipulation or agreement as to that amount is found in the record. Thus, we are unable to determine whether the total amount of Husband’s monthly payments exceed his net monthly income or whether he has the ability to pay that amount each month.

Regarding the rehabilitative alimony award, although Husband agreed that Wife should receive rehabilitative alimony, he did not agree to the specific terms contained in the Final Judgment regarding the time period he would have to pay alimony and the escalating and de-escalat-ing amounts over the four-year period. We note, parenthetically, that Wife does not argue that Husband agreed to this plan and the varying amounts of the payments. Moreover, there are no findings in the Final Judgment relating to the rehabilitative alimony award as required by section 61.08, Florida Statutes (2007). Finally, there is nothing in the record regarding any credits to which Husband may be entitled for his mortgage payments on the marital home, pursuant to section 61.077, Florida Statutes (2007).

We reverse that part of the Final Judgment regarding the amounts of rehabilitative alimony payments and the time period for those payments and remand this case to the trial court to conduct an evi-dentiary hearing so that a rehabilitative alimony plan can be established and to make the necessary findings required by section 61.08, Florida Statutes. We also reverse that part of the Final Judgment ordering Husband to make the $5,000 per month mortgage payments and the specific amount of $1,068 for the other debt obligations. During the evidentiary hearing on remand, the trial court should determine the amount of Husband’s net monthly income along with his ability to pay the mortgage and debt obligations, and adjust the amounts Husband is ordered to pay accordingly. The trial court should also determine whether Husband is entitled to credits or setoffs for his mortgage payments on the marital home, in accordance with section 61.077, Florida Statutes.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER and JACOBUS, JJ., concur.


source: Caselaw Access Project

author: WEBSTER, J.

license: Public Domain

text:
    Lindsey GRAHAM, Petitioner, v. FLORIDA PAROLE COMMISSION and Edwin G. Buss, Secretary, Florida Department of Corrections, Respondents.
    No. 1D10-4140.
    District Court of Appeal of Florida, First District.
    March 16, 2011.

      Lindsey Graham, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Tallahassee, for Respondent Florida Parole Commission; No appearance for Respondent Florida Department of Corrections.
   WEBSTER, J.

By petition for a writ of certiorari pursuant to Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998), Lindsey Graham, an inmate of the state correctional system, seeks review of a final order entered by the circuit court denying Graham’s petition for a writ of habeas corpus challenging the Florida Parole Commission’s order revoking his conditional release. Because we conclude that the circuit court’s order constituted a departure from the essential requirements of law, we grant the petition, quash the circuit court’s order, and remand for further proceedings applying the correct law. See Tedder v. Fla. Parole Comm’n, 842 So.2d 1022 (Fla. 1st DCA 2003).

Graham was released to conditional release supervision until November 2013. In November 2008, Graham was arrested for domestic battery and aggravated assault, but the charges were later dropped. A violation of supervision warrant issued charging that Graham failed to obey all laws when he threatened and unlawfully touched the domestic violence victim. The alleged victim did not testify at the revocation hearing. Officer Coleman testified that, at the scene, the alleged victim stated that Graham punched her in the back of the head, causing her to hit her head on the bathroom wall, damaging the tile. Coleman observed the bathroom shower curtain on the floor and a piece of tile separated from the shower wall. According to Coleman, the alleged victim told him she had a knot on the back of her head, but he could not feel or see it because of the alleged victim’s hair. Graham testified that he did not assault the alleged victim. The parole examiner found Graham guilty of the violations and, although the examiner recommended that Graham be restored to supervision, the Parole Commission revoked Graham’s supervision.

Graham filed a petition for writ of habe-as corpus in the circuit court arguing that there was insufficient evidence to demonstrate that he committed the offenses. There were no photographs or physical evidence, and the victim did not testify. The circuit court denied the petition, concluding that the Parole Commission did not abuse its discretion when it revoked Graham’s conditional release. Graham now seeks certiorari review, arguing that a revocation cannot be based solely on hearsay, citing J.F. v. State, 889 So.2d 130 (Fla. 4th DCA 2004).

Hearsay evidence in the form of a victim’s statement, combined with non-hearsay evidence corroborating the statement, is often sufficient to support a violation of supervision. In Russell v. State, 982 So.2d 642 (Fla.2008), our supreme court upheld a revocation of probation, concluding that non-hearsay evidence, including testimony of an observation of victim injury, was sufficient to support the victim’s hearsay statement alleging battery. In Morris v. State, 727 So.2d 975 (Fla. 5th DCA 1999), the court upheld a revocation of probation based on the hearsay testimony of investigating officers as to what had been told to them by a mother and daughter at the scene of a domestic violence incident as well as upon the direct testimony of the officers as to what they observed at the scene-evidence of a struggle, a bruise and bite mark on one victim, the distraught appearance of both mother and daughter, and the belligerent attitude of the defendant at the scene. However, revocation based solely on hearsay is improper. Boyd v. State, 1 So.3d 1186 (Fla. 2d DCA 2009). There must be some direct evidence in addition to the hearsay.

The Parole Commission relies on Russell, Morris, Arndt v. State, 815 So.2d 674 (Fla. 5th DCA 2002) (upholding probation revocation where the victim told the deputy that she had been assaulted and the deputy observed redness on the side of the victim’s face and ear), and Young v. State, 742 So.2d 418 (Fla. 5th DCA 1999) (upholding probation revocation where hearsay testimony was supported by the officer’s description of the victim’s wounds and photographs of the victim’s wounds). However, in all of those cases, the police officer observed and was able to testify about physical injuries to the victims, and that testimony provided non-hearsay evidence of the assaults. Here, Officer Coleman did not testify that he observed any physical injuries to the alleged victim. The torn shower curtain and broken tile are not direct evidence of domestic battery or aggravated assault.

When considering a petition for writ of certiorari pursuant to Sheley, this court has only two options — it may either deny the petition or grant it, and quash the order to which the petition is directed. It may not enter judgment on the merits, or direct the lower tribunal to enter any particular order. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 843-14 (Fla.2001); Tedder, 842 So.2d at 1024. Accordingly, the relief we may grant is limited to quashing the circuit court’s order, which we now do. On remand, we direct the trial court to expedite its reconsideration of Graham’s petition.

WOLF and ROBERTS, JJ., concur.


author: PER CURIAM.

text:
    Narcisso PARKER, Appellant, v. STATE of Florida DEPARTMENT OF CORRECTIONS, Appellee.
    No. 4D11-601.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Rehearing Denied May 2, 2011.
    Narcisso Parker, Indiantown, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

This petition for writ of habeas corpus seeks review of the circuit court’s denial of a mandamus complaint that sought return of property seized as part of a criminal investigation in 1990. We redesignate this as an appeal from the circuit court’s final order and treat the petition for writ of habeas corpus as the initial brief. Petitioner has filed an appendix which contains all documents required to review the issue presented and which we treat as the record on appeal. We summarily affirm. Fla. RApp. P. 9.315(a).

The circuit court properly denied the relief requested in a thorough and well-reasoned order. The materials were destroyed and are no longer in the possession of government officials, so mandamus does not lie. Further, the statute of limitations for bringing an action for return of property expired long ago in 1998, four years after the prosecution in which the property was seized concluded. § 95.11(3)(i), Fla. Stat. (1989); Poux v. State, 985 So.2d 1191 (Fla. 4th DCA 2008). Petitioner unduly delayed in seeking return of the property at issue.

Affirmed.

POLEN, TAYLOR and GERBER, JJ., concur.


author: ALTENBERND, Judge.

text:
    Theron SPEIGHTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3999.
    District Court of Appeal of Florida, Second District.
    March 16, 2011.
    Rehearing Denied April 11, 2011.
    Theron Speights, pro se.
   ALTENBERND, Judge.

Theron Speights appeals the trial court’s order that summarily denied his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Speights maintains the trial court should have conducted an evidentiary hearing on his claim that he was entitled to relief because he had recently discovered that his lawyer had received an acceptable plea offer from the State prior to trial and did not inform him of the offer. He relies on handwritten notes his lawyer allegedly wrote prior to trial on a letter that the assistant state attorney mailed to the lawyer. He attached a copy of the letter with the handwritten notes to his motion.

Mr. Speights accurately alleges that he proceeded to trial on a charge of trafficking in cocaine in August 2002. The letter on which his attorney allegedly wrote notes about the plea negotiations is dated October 31, 2002, and contains a date stamp indicating receipt by his lawyer on November 4, 2002. Mr. Speights had other felony charges that were resolved after the trial in August 2002, and it is possible that his attorney wrote the notes but they relate to his other charges. Whatever the actual facts, this “newly discovered evidence” cannot possibly relate to plea negotiations in August 2002, and the trial court properly denied this claim.

Affirmed.

CRENSHAW and BLACK, JJ., Concur.


text:
    Dustin J. MIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1445.
    District Court of Appeal of Florida, First District.
    March 22, 2011.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In this direct criminal appeal, appellant seeks review of a judgment and sentence entered after his probation was revoked. Appellant’s appointed counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon initial review, we issued an order pursuant to State v. Causey, 503 So.2d 321 (Fla.1987), directing the parties to address “whether appellant’s failure to report for a random urinalysis because of transportation problems is sufficient to support the trial court’s determination that appellant had committed a willful and substantial violation of the conditions of his probation,” citing Meade v. State, 799 So.2d 430, 432 (Fla. 1st DCA 2001), where our court stated that “[i]t is well established that failure to keep an appointment due to transportation problems is a valid excuse and is insufficient to demonstrate willful and substantial noncompliance with a condition of probation.” The parties have now briefed this issue. Because we conclude that (1) Meade and the cases on which it relied have been implicitly overruled by a subsequent decision of our supreme court; and (2) the trial court did not abuse its discretion when it determined that appellant had committed a willful and substantial violation of a condition of his probation, we affirm. However, we remand the case to the trial court with directions that it enter a corrected order of revocation of probation specifying the condition of probation violated.

Appellant pleaded guilty to driving under the influence with serious bodily injury. He was sentenced to four years’ probation and two days in jail, with credit for two days served. Two years later, the state filed an affidavit alleging that appellant had violated a condition of his probation by failing to submit to a random urinalysis. At the ensuing evidentia-ry hearing, appellant’s probation officer testified that appellant had been called and told that, within twenty-four hours, he must travel to the probation office and submit to a random urinalysis. According to the probation officer, appellant called the office several times later that day, saying that he was trying, without success, to obtain transportation. The probation officer told appellant to take a bus, but appellant did not appear until five days later. A urine sample he gave at that time tested negative for drugs or alcohol. Appellant testified that he had tried to obtain a ride to the probation office on the specified day, but had been unsuccessful. He claimed he could not take a bus because he did not have money for the fare. At the conclusion of the evidence, the trial court announced that it found appellant’s failure to report for a random urinalysis on the specified day to be willful and substantial, and revoked appellant’s probation, noting the seriousness of the offense of which appellant had been convicted. Appellant was subsequently sentenced to five years in prison, with credit for time already served. This appeal follows.

To justify revocation, a violation of a condition of probation must be both willful and substantial. See Van Wagner v. State, 677 So.2d 314, 817 (Fla. 1st DCA 1996); Burgin v. State, 628 So.2d 575, 576 (Fla. 1st DCA 1993). Because it is in a better position to determine whether a violation is willful and substantial, the trial court’s decision will be reversed on appeal only if it constitutes an abuse of discretion. See Blackshear v. State, 838 So.2d 1228, 1229 (Fla. 1st DCA 2003); Burgin, 623 So.2d at 576.

In Meade v. State, 799 So.2d 430, 432 (Fla. 1st DCA 2001), this court said that “[i]t is well established that failure to keep an appointment due to transportation problems is a valid excuse and is insufficient to demonstrate willful and substantial noncompliance with a condition of probation.” As support for this statement, the court cited Rodriguez v. State, 768 So.2d 1234, 1235 (Fla. 5th DCA 2000); Butler v. State, 775 So.2d 320, 321 (Fla. 2d DCA 2000); Remich v. State, 696 So.2d 1270, 1271 (Fla. 2d DCA 1997); and Stevens v. State, 599 So.2d 254 (Fla. 3d DCA 1992). However, to the extent that Meade and the cases on which it relied stand for the proposition that a per se rule exists prohibiting revocation of probation for failure, allegedly caused by transportation problems, to keep a single appointment, we believe they have been implicitly overruled by the subsequent decision of our supreme court in State v. Carter, 835 So.2d 259 (Fla.2002).

In Carter, the appellant’s probation had been revoked because he failed to file a single monthly report. Id. at 260. On appeal, this court reversed, applying a per se rule that, as a matter of law, failure to file a single monthly report cannot constitute a substantial violation. Id. at 260-61. Our supreme court quashed the decision of this court, rejecting the concept of a per se rule that some types of violations can never constitute willful and substantial violations of the conditions of one’s probation. Id. at 261. In doing so, the court said that “[tjrial courts must consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence.” Id. According to the court, because “[tjhe trial court is in a better position to identify the probation violator’s motive, intent, and attitude and assess whether the violation is both willful and substantial,” “it makes sense to allow the trial court the discretion to weigh each situation without the mandates of a bright line rule requiring revocation or preventing it.” Id. at 262.

Applying the holding and rationale in Carter to this case, it is apparent that the trial court was in a far better position than are we to consider appellant’s “motive, intent, and attitude and assess whether the violation [wajs both willful and substantial.” Id. Reviewing the trial court’s holding pursuant to the abuse of discretion standard as we are obliged to do, it is clear to us that the holding is supported by competent substantial evidence, and is not one that no reasonable person could have reached. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (stating that, “[ijf reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion”). Accordingly, we affirm the trial court’s order revoking appellant’s probation.

We must, however, remand the case to the trial court because the order revoking appellant’s probation does not specify the condition of probation violated. On remand, the trial court is directed to enter a corrected order specifying the condition of probation violated. See Leggs v. State, 27 So.3d 155 (Fla. 1st DCA 2010) (affirming, in an Anders appeal, the appellant’s judgment and sentence, but remanding with directions that the trial court enter an order specifying the conditions of probation violated).

AFFIRMED and REMANDED, with directions.

WOLF, and ROBERTS, JJ., concur.


text:
    Shameen A. DEAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0230.
    District Court of Appeal of Florida, First District.
    March 22, 2011.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the State’s motion for rehearing, withdraw our prior opinion, and substitute the following in its place.

The appellant was convicted of one count of first-degree murder, two counts of armed robbery, and one count of armed burglary. He was sentenced to concurrent terms of life imprisonment with a mandatory minimum sentence of life imprisonment. In our prior opinion, we affirmed the convictions, but reversed and remanded the mandatory minimum sentences of life for the armed robbery and armed burglary convictions and remanded for the entry of mandatory minimum sentences of 25 years instead. Based on Hoover v. State, 877 So.2d 751 (Fla. 1st DCA 2004), we held that section 775.087(2)(a)3., Florida Statutes (2008), provided that a defendant who discharged a firearm during the commission of certain enumerated felonies, including robbery and burglary, and, as the result of the discharge, caused the death of any person, could not be sentenced to a mandatory minimum sentence of more than 25 years. However, we are now constrained to affirm the sentences based on the Florida Supreme Court’s decision in Mendenhall v. State, 48 So.3d 740 (Fla.2010), holding that section 775.087(2)(a)3. gives the trial court the discretion to impose a mandatory minimum sentence anywhere within the range of 25 years to life.

AFFIRMED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    Peter Russell KUGLER, Appellant, v. Alvin J. JOOSTEN, Appellee.
    No. 1D10-2408.
    District Court of Appeal of Florida, First District.
    March 23, 2011.
    Peter Russell Kugler, pro se, Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Peter Russell Kugler appeals an order summarily denying his motion to vacate or dissolve a permanent injunction for protection against repeat violence entered in 2003. He alleged that he no longer poses a threat to the petitioner, Alvin J. Joosten, and that the injunction is preventing him from participating in a prison Reality House A.A. program. The trial court erred in denying this legally sufficient motion without affording appellant a meaningful opportunity to be heard. Raymonvil v. Lewis, 46 So.3d 139 (Fla. 5th DCA 2010); McCormick v. Shannon, 32 So.3d 787 (Fla. 2d DCA 2010); Colarusso v. Lupetin, 28 So.3d 238 (Fla. 4th DCA 2010).

REVERSED and REMANDED for further proceedings.

BENTON, C.J., WEBSTER, and VAN NORTWICK, JJ., concur.


author: BENTON, C.J.

text:
    Taylor Christine COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6039.
    District Court of Appeal of Florida, First District.
    March 28, 2011.
    Rehearing Denied April 15, 2011.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Taylor Coleman appeals her convictions on two counts of third-degree felony theft, one count of third-degree burglary, and one count of criminal mischief. Because the trial court erred in overruling defense counsel’s objection to a witness’s comment on Ms. Coleman’s invoking her right to remain silent, and the state did not establish beyond a reasonable doubt that the improper comment was harmless, we reverse and remand for a new trial.

Ms. Coleman was accused of committing thefts at two separate Lenny’s Sub Shops. At trial, Okaloosa County Sheriffs Investigator Jason Folley testified about interviewing Ms. Coleman as part of his investigation. Specifically, he testified that he told Ms. Coleman that he had begun to suspect both thefts involved a single employee with the opportunity and ability to gain access to both stores. Ms. Coleman had such opportunity and ability, he testified. Investigator Folley further testified that as he “began to put these pieces together she abruptly ended the interview.” Defense counsel objected and simultaneously moved for a mistrial on grounds Investigator Folley was improperly commenting on Ms. Coleman’s exercise of her right to remain silent. The trial judge overruled the objection and denied the motion for mistrial.

But “any comment which is ‘fairly susceptible’ of being interpreted as a comment on silence will be treated as such.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (citing State v. Kinchen, 490 So.2d 21 (Fla.1985); David v. State, 369 So.2d 943 (Fla.1979)). The state now concedes that Investigator Folley made an improper comment on Ms. Coleman’s reportedly sudden silence, and that the trial court erred in overruling defense counsel’s objection. The Fifth Amendment to the United States Constitution provides that no person “shall be ... compelled in any criminal case to be a witness against himself. ...” U.S. Const, amend. V. “To give effect to this clause, it is well-settled that ‘courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the [defendant’s] right of silence.’ Smith v. State, 681 So.2d 894, 895 (Fla. 4th DCA 1996) (citing State v. Smith, 573 So.2d 306, 317 (Fla.1990)).” Morris v. State, 988 So.2d 120, 122 (Fla. 5th DCA 2008). See also Traylor v. State, 596 So.2d 957, 964-66 (Fla.1992) (discussing state constitutional right not to be compelled to be a witness against oneself).

The state contends, however, that the error was rendered harmless when defense counsel asked Investigator Folley on cross-examination about whether there was anything unusual in an interviewee’s decision to stop talking to police once the interviewee realized she had come under suspicion. Appellant explains this line of questioning as an attempt to mitigate the damage done by the improper comments. See generally In re M.E.G., 353 So.2d 594, 595 (Fla. 4th DCA 1977) (improper comment on silence during a jury trial “is reversible error incapable of being rendered harmless error by some later statements”). “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict_” DiGuilio, 491 So.2d at 1135. “If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Id. at 1139.

In this circumstantial evidence case, we cannot say beyond a reasonable doubt that the witness’s improper comment on Ms. Coleman’s right to remain silent did not contribute to the verdict on all four counts. See Id. Defense counsel’s follow-up questioning of Investigator Folley concerning the improper comment was an understandable effort to attenuate the harm which, however, we cannot be sure succeeded in undoing the damage.

Reversed and remanded.

DAVIS and THOMAS, JJ., concur.


text:
    Carlile BRELAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6512.
    District Court of Appeal of Florida, First District.
    March 23, 2011.
    Carlile Breland, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The state concedes, and we agree, that the trial court erred in denying the motion as untimely. Accordingly, we reverse and remand for consideration of Appellant’s claims on the merits.

On November 18, 2005, pursuant to a negotiated plea, Appellant was convicted and sentenced on several drug-related offenses. On direct appeal, this court vacated his sentences and remanded for re-sentencing in accordance with the plea agreement. Breland v. State, 951 So.2d 74 (Fla. 1st DCA 2007). Appellant’s new sentences were affirmed without opinion, Breland v. State, 995 So.2d 955 (Fla. 1st DCA 2008) (table), and the mandate issued on December 12, 2008.

On September 8, 2009, Appellant filed his motion for postconviction relief. In his motion and its “addendum” filed July 19, 2010, Appellant raised four claims of ineffective assistance of counsel. The trial court summarily denied the motion as untimely after concluding that it was filed more than two years after Appellant’s convictions became final. The court reasoned that the convictions were final on December 18, 2005, thirty days after they were entered, because Appellant sought review of his sentences on direct appeal but did not challenge his convictions.

A rule 3.850 motion for postcon-viction relief must be filed within two years after the judgment and sentence become final, subject to certain narrow exceptions. See Fla. R.Crim. P. 3.850(b). But the two-year period in the rule does not commence until both the conviction and the sentence become final, which occurs upon issuance of the mandate in the direct review proceedings. See Pierce v. State, 875 So.2d 726, 729 (Fla. 4th DCA 2004); Snipes v. State, 843 So.2d 1043, 1044 (Fla. 2d DCA 2003); Cook v. State, 596 So.2d 483, 484 (Fla. 1st DCA 1992). Indeed, until the direct appeal is concluded, the trial court is without jurisdiction to consider a rule 3.850 motion. See Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987); see also Snipes, 843 So.2d at 1044 (rejecting an interpretation of rule 3.850 identical to that adopted by the trial court below because such an interpretation could result in the defendant forfeiting his post-conviction rights by exercising the right to appeal his sentence).

In this case, the direct review proceedings concerning Appellant’s judgment and sentence concluded on December 12, 2008, upon the issuance of the mandate in the appeal after his resentencing. Because Appellant’s rule 3.850 motion was filed within two years of that date, the motion was timely and the trial court erred in denying the motion on timeliness grounds. Accordingly, we reverse the order on appeal and remand for the trial court to consider Appellant’s postconviction claims on the merits.

REVERSED and REMANDED with directions.

ROBERTS, CLARK and WETHERELL, JJ., concur.


text:
    Glenn ALDAY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D10-5033.
    District Court of Appeal of Florida, First District.
    March 23, 2011.

      Glenn Alday, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, and Anthony Andrews, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Glenn Alday seeks certiorari review of an order denying his petition for writ of mandamus. In that petition, Alday challenged the Florida Parole Commission’s action leaving intact the suspension of his presumptive parole release date, thereby effectively denying him parole. We grant the petition, quash the order denying relief, and remand for further proceedings.

The ultimate discretion to grant parole lies with the Florida Parole Commission, and a decision by the Commission to suspend an inmate’s presumptive parole release date and defer setting an effective parole release date can be set aside by a court only for a demonstrated abuse in the exercise of the Commission’s discretion. See Florida Parole & Probation Comm’n v. Paige, 462 So.2d 817 (Fla.1985). As we observed in Florida Parole Commission v. Brown, 989 So.2d 723 (Fla. 1st DCA 2008), an abuse of discretion may be established in various ways, including a showing that the Commission deviated from the legal requirements imposed upon it, such as the obligation to review the inmate’s complete record and to articulate the basis for its decision.

Among other things, Alday argued to the circuit court that the Commission deviated from legal requirements imposed upon it by its own rules when it left intact its 1993 decision suspending his PPRD and declining to authorize an EPRD. We conclude that this claim, which was not expressly addressed by the circuit court, stated a prima facie basis for relief. Rule 23-21.0155, Florida Administrative Code, provides that when the Commission suspends an inmate’s PPRD and declines to authorize an EPRD, the inmate shall continue to receive extraordinary interviews at scheduled intervals. In turn, the procedures for such extraordinary interviews are set forth in rule 23-21.0161. This rule provides that in conducting extraordinary interviews, examiners shall follow the procedures specified for conducting EPRD interviews and, additionally, shall obtain information relevant to the Commission’s previous determination that the inmate was not a good candidate for parole release. The parole examiner then reduces a recommendation to writing and forwards it to the Commission, which “shall independently review the complete official record in the inmate’s case” and thereafter inform the inmate in writing of its findings on extraordinary review. More specifically, subsection (3) of the rule provides as follows:

If, as a result of extraordinary interview, the Commission finds that the inmate continues to be a poor candidate for parole release, the Commission shall again state the reasons and record support for this finding and shall again refuse to authorize an effective parole release date. Finally, the Commission shall schedule a subsequent extraordinary interview pursuant to rule 23-21.013, F.A.C. Thereafter, such extraordinary interviews shall be performed in accord with this rule and shall continue until the Commission finds the inmate to be a good candidate for parole release or he otherwise satisfies his term of incarceration.

The Commission’s February 2009 order memorializing its most recent action with respect to petitioner reflects that “a review of the entire Department of Corrections record” was undertaken. The order finds that petitioner continues to be a poor candidate for parole release, but the order does not state any reasons for this finding. The order does not incorporate by reference or otherwise re-state the reasons contained in the Commission’s prior orders suspending petitioner’s PPRD, and we reject the Commission’s contention that its unelaborated “reaffirmation” of its prior finding of a negative parole prognosis under section 947.18, Florida Statutes, is sufficient to comply with the clear requirement in rule 23-21.0161(3) that the Commission “again state the reasons and record support” for its finding that petitioner continues to be a poor candidate for parole release.

Accordingly, the order denying Alday’s petition for writ of mandamus is QUASHED and the matter is REMANDED for further proceedings consistent herewith.

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


text:
    AFTERMATH, INC., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Mark J. McConnell, Appellees.
    No. 1D10-2672.
    District Court of Appeal of Florida, First District.
    March 24, 2011.
    Vincent B. Lynch and Christopher L. Hixson of Lynch & Robbins, P.A., St. Pe-tersburg, for Appellant.
    A. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. See Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498 (Fla. 4th DCA 2004).

VAN NORTWTCK, LEWIS, and CLARK, JJ., concur.


author: DAVIS, Judge.

text:
    Lisa FRANZONE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4085.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.

      Leslie M. Sammis of Sammis Law Firm, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Lisa Franzone challenges her conviction and sentence for improper impound of a vehicle on private property. A jury found her guilty of the offense, and the trial court adjudicated her guilty and sentenced her to three years’ probation. Because the trial court erred in denying her motion for judgment of acquittal, we reverse.

Mrs. Franzone is a member of Zoner, LLC, the company that owns and operates George and Sons Towing. On the evening of October 22, 2008, Peter Donnantuani attended a Tampa Bay Rays baseball game. Mr. Donnantuani parked his car at a nearby condominium complex where he is not a resident. While he was attending the game, a condominium resident returned home to find Mr. Donnantuani’s car in her assigned parking spot. She called George and Sons Towing to come and remove the vehicle.

After the game, Mr. Donnantuani returned to the parking lot and discovered that his car was missing. For the first time he saw a sign that indicated that vehicles parked in that lot without permission were subject to being towed. He called the number of the towing service listed on the sign and was told that that company did not have the vehicle. He then contacted law enforcement and ultimately learned that his car had been towed by George and Sons. He placed several calls to George and Sons but did not retrieve his vehicle until the next day. It was this delay that served as the basis for Mrs. Franzone’s conviction.

Mrs. Franzone was convicted of violating the terms of section 715.07(2)(a)(l)(a), Florida Statutes (2008), which sets forth the conditions by which a vehicle may be towed from private property without the owner’s consent. Included in those conditions is the requirement that

[a]ny towed or removed vehicle or vessel must be stored at a site within a 10-mile radius of the point of removal.... That site must be open for the purpose of redemption of vehicles on any day that the person or firm towing such vehicle or vessel is open for towing purposes, from 8 a.m. to 6 p.m., and, when closed, shall have prominently posted a sign indicating a telephone number where the operator of the site can be reached at all times. Upon receipt of a telephoned request to open the site to redeem a vehicle or vessel, the operator shall return to the site within 1 hour or she or he will be in violation of this section.

§ 715.07(2)(a)(l)(a) (emphasis added). The statute also identifies a violation of section 715.07(2)(a)(l)(a) as a third-degree felony. § 715.07(5)(b). This is the offense of which Mrs. Franzone was convicted.

At trial, Mrs. Franzone challenged the sufficiency of the State’s evidence by her motion for judgment of acquittal, arguing that the State had failed to establish (1) that she was the operator of George and Sons Towing, (2) that no one was present at the site where the car was located during the time at issue, and (8) that on the night of the incident, Mr. Donnantuani could not prove that he was the rightful person to take possession of the car. In denying Mrs. Franzone’s motion for judgment of acquittal, the trial court determined that for purposes of the statute, she was the operator of the towing company because she was “running the business,” she was the person to whom the dispatcher reported, and she actually made the decision the following day to release the car. The court therefore concluded that Mrs. Franzone could be held criminally responsible if the jury determined that a crime had been committed. But the trial court also observed that the evidence presented was so conflicting that the jury may be unable to determine what actually happened that night.

On appeal, in addition to raising the arguments she made in the motion for judgment of acquittal, Mrs. Franzone challenges the constitutionality of section 715.07(2)(a)(l), arguing that it is vague and that it fails to include a mens rea element. Without reaching the question of constitutionality, we do note the difficulty of applying this statute. The statute requires the operator to return to the site within an hour of receiving a telephonic notification of an owner’s desire to redeem his or her vehicle. However, it does not clearly define the term “operator.” Is the operator the employee who has towed the vehicle, the dispatcher who is answering the telephone, or the owner of the business who, as in this case, may be home in bed when the telephoned request is made?

We conclude that the trial court erred in determining that Mrs. Franzone is the operator of the site where Mr. Don-nantuani’s vehicle was being stored. As a matter of law, Zoner, LLC, d/b/a George and Sons Towing, is the operator contemplated by the statute. Although chapter 715 does not define the term “operator,” section 1.01(15), Florida Statutes (2008), specifically defines “wrecker operator” to be “any person or firm regularly engaged for hire in the business of towing or removing motor vehicles.” (Emphasis added.)

The uncontested testimony at trial established that Mrs. Franzone did not personally engage in the business of towing vehicles, i.e., she did not enter into contracts personally to tow vehicles. Rather she followed the procedures established by Florida law to create a separate firm— Zoner, LLC, d/b/a George and Sons Towing—to engage in such business.

Chapter 608 of the Florida Statutes provides for the creation of limited liability companies like Zoner, LLC. LLCs are separate and distinct from the natural persons who serve as their managers or who are their members by virtue of economic investment. See § 608.402(18) (“ ‘Manager’ means a person who is appointed or elected to manage a manager-managed company....”), (21) (“‘Member’ means any person who has been admitted to a limited liability company ... and has an economic interest in [the LLC].”), Fla. Stat. (2008). And an LLC possesses “the same powers as an individual to do all things necessary to carry out its business and affairs.” § 608.404. This includes but is not limited to the power to sue or be sued, enter contracts, conduct business, and purchase and sell real property. Id. When chapter 608 is compared to chapter 607 governing corporations, it is obvious that the LLC is comparable to the more traditional business structure of a corporation. Such a business entity, in this case Zoner, LLC, would be the “firm” referred to in the definition of “wrecker operator” found in section 1.01. Cf. § 715.07(2)(a)(6) (referencing “[a]ny person or firm that tows or removes vehicles”), (2)(a)(7) (referencing “[a]ny person or firm towing or removing any vehicles”), (2)(a)(9) (“[N]o release or waiver of any kind which would release the person or firm towing the vehicle ... may be required ... as a condition of release of the vehicle ... to its owner.”) (emphasis added). We therefore conclude that the term “operator” as used in section 715.07 applies to the natural person or firm that engages for hire in the business of towing vehicles.

That being said, an officer or employee of a business entity may be held criminally liable if he or she commits or authorizes acts that make up a criminal offense. See State v. Shouse, 177 So.2d 724, 726 (Fla. 2d DCA 1965); cf. § 621.07, Fla. Stat. (2008) (“[A]ny officer, agent, member, manager, or employee of a [professional service] corporation or limited liability company ... shall be personally liable and accountable only for negligent or wrongful acts or misconduct committed by that person, or by any person under that person’s direct supervision and control-”). See generally Stephens v. State, 824 So.2d 190, 192 (Fla. 1st DCA 1975) (“[T]he State could have charged the corporation in the information and/or the defendant, acting in his corporate capacity.”).

However, before determining whether Mrs. Franzone personally is criminally responsible for the acts or omissions of the operator/firm, we must first decide if the State has proven that a crime was even committed. Mrs. Franzone is correct in her contention that the statute itself does not specifically require any mens rea or guilty knowledge on the part of the operator. “At common law, the general rule was that guilty knowledge or mens rea was a required element in the proof of every crime.” Wegner v. State, 928 So.2d 436, 438 (Fla. 2d DCA 2006). In fact, “because of the strength of the traditional rule that requires mens rea, offenses that require no mens rea are generally disfavored.” State v. Giorgetti, 868 So.2d 512, 515 (Fla.2004) (emphasis omitted). “Relying on the strength of the traditional rule, we ... have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Staples v. United States, 511 U.S. 600, 606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (emphasis omitted). Absent such an indication, “we will ordinarily presume that the [legislature intends statutes defining a criminal violation to contain a knowledge requirement” and will read such a requirement into the statute. Giorgetti, 868 So.2d at 516; see also United States v. U.S. Gypsum Co., 438 U.S. 422, 437, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (“This Court ... has on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.”).

We also note that we agree with the trial court’s assessment of the testimony presented below; it was conflicting as to who said what to whom and when. However, our review of the record suggests that if the jury chose to believe certain portions of the testimony, there could be a reasonable inference that Mr. Donnantuani did in fact make a request of the dispatcher to redeem his vehicle. An awareness of this request may meet the guilty knowledge element regarding the criminal liability of the operator/firm.

However, it was not Zoner, LLC, that was charged with this third-degree felony, but rather it was Mrs. Franzone personally who was charged with and convicted of a crime. In order for the State to hold Mrs. Franzone, a natural person who is distinct from the operator — Zoner, LLC — criminally responsible, it had to prove that on the night of the incident, she intentionally instructed the employees of George and Sons Towing to refrain from performing the statutorily mandated acts. Cf. Donald & Bales Exterminating, Inc. v. State, 487 So.2d 78, 80 (Fla. 1st DCA 1986) (“If, as in the case at bar, the crime charged involves guilty knowledge or criminal intent, it is essential in order to substantiate the criminal liability of an officer of the corporation to show that he actually and personally performed the acts which constitute the offense[ ] or that they were done by his direction or permission.” (citing 18B Am. Jur. 2d Corporations § 1894 (1985))).

In denying Mrs. Franzone’s motion for judgment of acquittal, the trial court failed to recognize that the State did not charge that Mrs. Franzone was individually responsible for the criminal acts of the LLC. And the State’s evidence failed to demonstrate that Mrs. Franzone was personally provided with any statutorily referenced request by Mr. Donnantuani to redeem his vehicle.

No one testified that Mr. Donnantuani ever spoke directly with Mrs. Franzone. All the witnesses agreed that Mr. Donnan-tuani spoke on more than one occasion with the dispatcher for George and Sons. The actual content of those conversations, however, is in dispute. One version indicated that Mr. Donnantuani demanded that the car be returned to the condominium lot (which is not required by law). Another version was that Mr. Donnantuani advised the dispatcher that he had the necessary money to pay the towing fee but did not have proof of ownership, to which the dispatcher replied that the car could not be returned until the next day. A final version was that Mr. Donnantuani had the money and the proof of ownership and was ready to meet with someone from George and Sons in order to redeem the car.

One point that was not in dispute was that over the course of the entire incident Mrs. Franzone was at home and was contacted only twice by the George and Sons dispatcher, Wade Holdshoe. The testimony showed that the only information Mrs. Franzone received regarding the incident came from Mr. Holdshoe. Accordingly, the information related to Mrs. Franzone by Mr. Holdshoe during those two conversations was the only basis the State had of proving guilty knowledge on the part of Mrs. Franzone. We conclude, however, that Mr. Holdshoe’s testimony is inadequate to establish Mrs. Franzone’s intent. As such, the trial court erred in denying Mrs. Franzone’s motion for judgment of acquittal.

Mr. Holdshoe testified that he talked with Mr. Donnantuani several times and also spoke with other persons who called on Mr. Donnantuani’s behalf. Although Mr. Holdshoe admitted that he understood that Mr. Donnantuani had the cash necessary to redeem the car, he also testified that Mr. Donnantuani continually demanded that the car be returned to the condominium parking lot from which it had been towed — something that George and Sons was not legally required to do. Furthermore, Mr. Holdshoe testified that he advised Mr. Donnantuani that because the car was owned by a leasing company, Mr. Donnantuani would have to show some proof of his right to possess the car as the lessee. According to Mr. Holdshoe, Mr. Donnantuani repeatedly insisted that he did not have to prove anything. Mr. Hold-shoe denied that Mr. Donnantuani or anyone on his behalf ever advised that Mr. Donnantuani had the necessary proof-of-ownership documents and wanted to come and redeem the car.

With respect to his conversations with Mrs. Franzone, Mr. Holdshoe testified that he called her once around midnight and then again at 3:00 a.m. During the first conversation, Mr. Holdshoe told Mrs. Franzone of the towing and Mr. Donnan-tuani’s insistence that the car be returned to the condominium parking lot, as well as Mr. Donnantuani’s assertion that he did not have to prove anything regarding his right to possession of the vehicle. The dispatcher testified that after several calls with Mr. Donnantuani making the same demands, Mr. Donnantuani eventually told him to “just forget it” because he would come to the office the next day to redeem the car. Mr. Holdshoe specifically testified that after that conversation with Mr. Donnantuani, he called Mrs. Franzone at 3:00 a.m. and advised her that Mr. Don-nantuani was going to wait to redeem his vehicle when the office opened the next day.

Based on this information, it was error for the trial court to conclude that the jury could infer that Mrs. Franzone — acting either as the operator contemplated by the statute or as a managing member of Zoner, LLC — had notice that Mr. Donnantua-ni was prepared to redeem the vehicle and that she knowingly refused to meet him within one hour to allow him to recover his car. Without her having this intent, she cannot be convicted of this third-degree felony, either as the operator of George and Sons or as a member of Zoner, LLC. As such, the trial court should have granted Mrs. Franzone’s motion for judgment of acquittal, and we must reverse her judgment and sentence and remand with instructions that she be discharged.

Reversed and remanded for discharge.

CASANUEVA, C.J., and WALLACE, J., Concur.

      . " 'Member' means any person who has been admitted to a limited liability company as a member in accordance with this chapter and has an economic interest in a limited liability company_" § 608.402(21), Fla. Stat. (2008).

      . Mrs. Franzone’s motion and argument made at the conclusion of the State's case is not in our record. The trial court indicated at the close of evidence that Mrs. Franzone's counsel should repeat his original argument in his second motion for judgment of acquittal because the trial court failed to record the first motion and argument, which had been presented during a sidebar. We conclude that a similar argument was made at the close of the State’s case, and we evaluate the evidence produced by the State in light of these three arguments.

      . Specifically, the trial court observed: ”[T]he jur[ors have] about eight different stories from eight different people that testified, so they’re going to have to sort through it and decide who ... they think is credible. There wasn't anything consistent between any of the witnesses for either of the two sides. So, I mean, it’s a classic credibility call, if they can find anybody they think is credible and decide what that version is as far as the case is concerned.”

      . The George and Sons employee who actually towed the car checked the vehicle identification number and determined that the car was owned by a leasing company. The dispatcher testified that he advised Mr. Donnan-tuani that he would need some identification and proof that he was the lessee of the vehicle before the vehicle could be returned to him.

      . Having resolved this case based on the trial court’s failure to grant the motion for judgment of acquittal, we do not address the other issues raised by Mrs. Franzone on appeal.


author: PALMER, J.

text:
    Alberto G. DAVID, Jr., Appellant, v. Loretta L. DAVID, Appellee.
    No. 5D09-4126.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.

      Seth Schwartz and Caleb D. Rowland of The Schwartz law Group, P.A., Jacksonville, for Appellant.
    Sean P. Sheppard of Sheppard & Sheppard, LLC, St. Augustine, for Appellee.
   PALMER, J.

Alberto David (husband) appeals the final order entered by the trial court dissolving his marriage to Loretta David (wife). We affirm in part and reverse in part.

The husband filed a petition to dissolve the parties’ marriage and the wife counter-petitioned. There were no children born of the marriage, so all issues tried were financial. Ultimately, the trial court entered a 32-page final dissolution judgment. The husband raises ten points on appeal, most of which are without merit.

First, the husband argues that the final judgment must be reversed because the trial court adopted verbatim the wife’s proposed final judgment. We disagree.

In this case, each party submitted a proposed final judgment setting forth his or her desired resolution of the case and the opposing party was provided time to respond. The final judgment entered by the trial court, although not a verbatim adoption of the wife’s proposed final judgment, was substantially similar to said judgment. Yet, the judgment was not inconsistent with any verbal rulings of the trial court, and there is no indication that the trial court did not remember the case or did not exercise independent judgment entering the dissolution order. As such, we find no reversible error related to the trial court’s entry of its final judgment. See Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004).

The husband next argues that the trial court erred in failing to include sufficient findings of fact in the final dissolution judgment. However, the husband failed to preserve this error for appellate review because he did not file a motion for rehearing in the trial court raising the alleged inadequacy of factual findings. See Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004).

Next, the husband contends that the final dissolution judgment must be reversed because the trial court erred in distributing the parties’ marital property. The husband first argues that the trial court “lacked the jurisdiction” to enter an unequal distribution of the parties’ assets and liabilities because the wife did not plead for unequal distribution in her counter-petition. However, the husband fails to cite any statutory or case law which supports this argument and, in fact, section 61.075(1) of the Florida Statutes (2007) expressly authorizes trial courts to enter an unequal distribution of marital assets and liabilities based upon relevant factors. As such, we reject this claim as meritless.

The husband also argues that the trial court abused its discretion in unequally dividing the marital credit card debt solely based upon the parties’ relative incomes. We agree.

In the final dissolution judgment, the trial court explained that the wife presented evidence demonstrating that, at the time the parties married, she had credit card debt totaling $1,854.59, and that on the date of separation the debt had climbed to $81,928.60. The court then noted that the legal presumption is that debts incurred during the marriage are marital debts, and that the husband did not present any evidence to rebut this presumption. The court then ruled that, based on the parties’ earning abilities, the husband was responsible for paying 91.6% of the marital debt on the wife’s credit cards while the wife was responsible for paying 8.4% of the debt.

Section 61.075 of the Florida Statutes (2007) requires trial courts to either distribute marital liabilities equally or to make findings of fact justifying an unequal distribution. Our courts have approved unequal distribution when the evidence establishes misconduct, such as intentional waste or depletion of marital assets. See Belford v. Belford, 51 So.3d 1259 (Fla. 2d DCA 2011); Santiago v. Santiago, 51 So.3d 637 (Fla. 2d DCA 2011); Jonsson v. Jonsson, 715 So.2d 1064 (Fla. 5th DCA 1998). However, disparate earning abilities cannot, without more, justify unequal distribution of marital assets and liabilities. Dease v. Dease, 688 So.2d 454 (Fla. 5th DCA 1997). Accordingly, we reverse the trial court’s distribution of the parties’ marital credit card debt.

The husband further argues that the trial court abused its discretion in awarding the wife one-half of the value of the husband’s dental practice. However, in his proposed final judgment, the husband suggested that the trial court distribute the appreciation in value of the dental practice equally between the parties. Since the husband recognized that the wife was entitled to receive a one-half interest in the appreciated value of the dental practice he cannot successfully argue on appeal that the wife failed to sustain her burden of proof on this issue. Further, the record contains competent substantial evidence to support the valuation of the practice as determined by the trial court.

The husband also argues that the trial court reversibly erred in failing to consider the tax consequences related to the distribution of the wife’s interest in the dental practice, claiming that the court’s ruling unnecessarily requires the husband to incur capital gains taxes. We disagree.

The only evidence regarding tax consequences resulting from the entry of a final dissolution judgment was tendered by the husband’s accountant who explained that if the husband were ordered to pay the wife her interest in the dental practice immediately the husband would suffer adverse tax consequences. The accountant testified that the least adverse tax method would be a payment made over time instead of a lump sum payment. The record suggests that the trial court did consider this testimony since the trial court did not direct the husband to make a lump sum payment to the wife. Instead, the trial court’s dissolution order offered the husband a variety of options in order to pay the wife her interest in the dental practice, including the options of refinancing, using funds derived from the sale of the parties’ other real estate, or making installment payments.

The husband next argues that the trial court erred in granting the wife a $51,683.28 special equity interest in the parties’ marital residence. We agree.

In Zangari v. Cunningham, 839 So.2d 918 (Fla. 2d DCA 2003), the Second District explained:

In Florida, there is a presumption that entireties real property is marital property regardless of who paid for it. § 61.075(6)(a)(5), Fla. Stat. (2001). In order to overcome the statutory presumption, the party seeking a special equity has the burden of proving that a gift was not intended. See Robertson v. Robertson, 593 So.2d 491 (Fla.1991).

Importantly, standing alone, evidence that one spouse provided non-marital funds to purchase a marital home is insufficient to prove that the spouse did not intend a gift. Cintron v. King, 961 So.2d 1010 (Fla. 4th DCA 2007).

Here, the marital home was jointly titled and, therefore, it was presumed to be marital property. Neither party presented any testimony indicating that the wife’s use of her non-marital funds towards the purchase of the marital home was not intended to be a gift. Therefore, the trial court’s award of a special equity to the wife was error. See Garcia v. Hernandez, 947 So.2d 657 (Fla. 3d DCA 2007).

The husband next argues that the trial court abused its discretion in awarding the wife permanent periodic alimony, claiming that the award makes him unable to pay even his most basic expenses, and further claiming that rehabilitative alimony should have been awarded. We disagree.

First, the husband’s argument that the trial court should have entered an award of rehabilitative, rather than permanent, alimony is without merit because the record demonstrates that neither party presented any evidence of a rehabilitative plan. See Lovell v. Lovell, 14 So.3d 1111 (Fla. 5th DCA 2009). Further, the argument that the husband is unable to maintain his lifestyle if he pays the wife the amount of alimony ordered by the court is not supported by the record.

The husband next argues that the trial court abused its discretion in requiring him to obtain a life insurance policy, with the wife as the designated beneficiary, to secure his alimony obligation. He maintains that there is no evidence in the record to support the imposition of such an obligation. We agree. Neither party presented any evidence concerning the need to secure the alimony obligation, the husband’s insurability, the cost of the proposed insurance, or the husband’s ability to afford the insurance. As such, the obligation must be stricken. See Rashid v. Rashid, 35 So.3d 992 (Fla. 5th DCA 2010); Child v. Child, 34 So.3d 159 (Fla. 3d DCA 2010).

The husband lastly argues that the trial court reversibly erred by entering an award of attorney’s fees in favor of the wife. We disagree. The husband’s proposed final judgment specifically stated: “Based upon his superior income, Husband shall pay Wife’s reasonable attorneys fees and costs incurred in these proceedings.” This proposed order operates to bar the husband from now claiming that the trial court erred in awarding the wife attorney’s fees.

Additionally, the evidence of record supports the award. During the hearing before the general magistrate the wife testified that she did not have the ability to pay her fees. She also identified her attorneys’ fee bill, and the bill was admitted into evidence. The magistrate thereafter issued a recommended order stating that, based on the evidence presented, the husband was in a financially superior position to pay attorney’s fees and that the wife was in need of assistance in paying her attorneys’ fees. The magistrate also held that the claimed hours were reasonable as was the hourly rate. The magistrate expressly noted that the husband was “given the opportunity to cross-examine the wife’s attorney at the hearing and the husband declined to ask any questions about the legal fees.” On this record, competent evidence exists to support the trial court’s ruling ordering the husband to pay the wife’s attorney’s fees.

In summary, we reverse the trial court’s dissolution judgment and remand for the trial court to reconsider the distribution of the parties’ marital credit card debt, to remove the special equity granted to the wife, and to remove the life insurance requirement. The tidal court must also revisit the entire equitable distribution scheme entered in this case to determine what is a fair and just distribution of assets and liabilities in light of this opinion. See Noah v. Noah, 491 So.2d 1124 (Fla.1986); Van Den Berg v. Van Den Berg, 49 So.3d 283 (Fla. 5th DCA 2010).

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Mark J. ADAMS, Appellant, v. Laurette Elias ADAMS, Appellee.
    No. 2D09-3905.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.

      David Brent James, Tampa, for Appellant.
    Joseph J. Regístrate, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Mark Adams petitioned to dissolve his marriage to Laurette Adams in June 2008. The parties later mediated their disputes and reached an agreement settling their “respective rights, duties, and obligations regarding property.” They could not agree on child support and alimony, however, so they went to trial on those issues. The trial court entered a thorough posttrial order, which included an award of permanent, periodic alimony to Mrs. Adams in the amount of $185 per month. On appeal, Mr. Adams challenges a provision of the final judgment that awards Mrs. Adams an additional payment of $15,000. We reverse that award because, as we shall explain, it was either an improper modification of the parties’ property settlement agreement or an unsupported award of alimony.

We need not describe all the trial evidence in detail. Suffice it to say, the record supported the permanent, periodic alimony award to Mrs. Adams. That award essentially equalized the parties’ monthly incomes. Mrs. Adams also sought lump-sum alimony and rehabilitative alimony, but the court denied those requests and she has not appealed those decisions.

The evidence relevant to the issue before us concerns a $30,000 payment made to Mrs. Adams in late 2007. In November of that year she was severely injured in a car accident. She was in a coma for some time and was hospitalized until the latter part of December 2007. During her hospitalization, her insurance company sent her a check for $30,000. At trial, Mr. Adams acknowledged that in order to cash the check, he took his comatose wife’s hand and marked an “X” on a power of attorney. He testified that he used the insurance money to pay his wife’s medical bills, to repay her student loans, and to pay off his car loan. All these payments were made before the parties separated. Mrs. Adams did not present any evidence that cast doubt on the credibility of Mr. Adams’s testimony about his use of the insurance proceeds.

The trial court discussed the $30,000 insurance payment in the portion of the final judgment analyzing the factors used to determine whether permanent, periodic alimony should be awarded. In reviewing the parties’ financial resources, including the assets and liabilities distributed to each, the court expressed its concern that Mr. Adams cashed the $30,000 check while his wife was in a coma. For that reason, the court found it appropriate that Mr. Adams repay Mrs. Adams half that amount.

The Adamses’ property settlement agreement, which was intended to be a complete division of their marital and non-marital property, did not address the $30,000 insurance payment. The money was gone by the time the couple separated, and no one disputes that it was used to pay marital obligations. The agreement, which was incorporated into the final judgment, contained a section entitled “Division of Other Assets and Liabilities.” The payment from the insurance company was not mentioned. If Mrs. Adams believed her husband’s actions concerning the check were untoward and that she was entitled to be reimbursed, that property should have been addressed in the settlement agreement.

A pure property settlement agreement like the one in this case is unmodifiable. See Draper v. Draper, 604 So.2d 946, 947 (Fla. 2d DCA 1992). Here, the circuit court essentially modified the Adamses’ agreement by requiring Mr. Adams to divest himself of property. The parties’ division of their assets and liabilities was not even an issue at trial. Moreover, because the insurance proceeds were applied to marital obligations, Mrs. Adams had already received the benefit of her share of the funds. The trial court abused its discretion in this regard, and we must reverse. See Griffith v. Griffith, 860 So.2d 1069 (Fla. 1st DCA 2003).

Even if we were to view the payment as support rather than as a division of property, the trial court’s decision could not be sustained. The court discussed the $15,000 payment in the section of the final judgment addressing permanent, periodic alimony, yet it never characterized what sort of alimony it might be.

Most importantly, Mrs. Adams did not establish her need for any alimony over and above the permanent, periodic alimony she was awarded. For example, bridge-the-gap alimony may be used to assist a party in transitioning from married to single life. But here the evidence showed that Mrs. Adams was living in a house owned by her father, was paying a reasonable rent, and was employed. See Borchard v. Borchard, 730 So.2d 748, 753 (Fla. 2d DCA 1999). And the court specifically rejected the appropriateness of lump-sum alimony because Mrs. Adams failed to prove either an entitlement to such an award or her husband’s ability to pay it. Finally, the court found Mrs. Adams’s proof lacking on her request for rehabilitative alimony.

Whether the $15,000 award is characterized as property or support, the trial court abused its discretion in requiring Mr. Adams to make this payment to his former wife. We reverse the portion of the final judgment that requires him to do so. We affirm the final judgment in all other respects.

Affirmed in part, reversed in part, and remanded.

DAVIS and SILBERMAN, JJ., Concur.

      . Mr. Adams also challenges the court’s computation of child support, noting that the most "serious" problem was "that the court left out the true amount of alimony it ordered in its calculations of child support.” Because we are reversing the requirement that he pay Mrs. Adams the $15,000, we affirm the child support award without further discussion.


text:
    STATE of Florida, Appellant, v. Luis HUBY, Appellee.
    No. 4D10-3817.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Jonathan S. Friedman of Jonathan S. Friedman, P.A., Fort Lauderdale, for ap-pellee.
   PER CURIAM.

The state appeals an order granting ap-pellee Luis Ruby’s amended motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. Without holding an evidentiary hearing on the amended motion, or giving notice and an opportunity to the State to respond to it, the trial court granted the motion, vacating Ruby’s open pleas and sentences for violation of probation. As we said in State v. Schiano, 696 So.2d 531 (Fla. 4th DCA 1997), rule 3.850(d) does not authorize the trial court to summarily grant a motion for post conviction relief. We reverse and remand for further proceedings on this amended motion, to which the State should be permitted to respond, and for the trial court to allow an evidentiary hearing on the claims raised by appellee.

Reversed and Remanded.

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


author: WETHERELL, J.

text:
    David Devon BLACKMON, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D10-2018, 1D10-2021.
    District Court of Appeal of Florida, First District.
    March 31, 2011.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant, David Devon Blackmon, seeks review of his convictions for both petit theft and dealing in stolen property, as well as the revocation of his probation based upon the new law offenses of burglary and theft. Blackmon raises three issues on appeal, only one of which merits discussion: whether the trial court committed fundamental error by convicting him of both petit theft and dealing in stolen property where the offenses involved the same property and arose from the same course of conduct. We affirm the other issues without further comment, and for the reasons that follow, we reverse Blackmon’s conviction for petit theft and remand with directions that the trial court vacate that conviction.

On November 23, 2009, employees at W.D. Rogers Mechanical Contractor (WD.Rogers) cut, beveled, and marked approximately 14 steel bars. At 3:30 p.m., the shop closed. When the shop reopened at 7:30 a.m. the next morning, employees discovered that the steel bars were missing. Evidence existed of a burglary: the barbed wire on top of the 6-foot chain-link fence had been pushed down, the bushes below the fence were broken, footprints were on the sides of the metal racks, and the ground showed marks where the bars had been thrown over the fence and stuck in the ground. The steel bars were later found at a local scrap yard. The scrap yard purchased the steel bars from Black-mon on November 24, 2009, at 8:02 a.m. The scrap yard paid Blackmon $61.80 for the bars. Based on the markings on the bars, W.D. Rogers confirmed that the bars sold to the scrap yard were the same bars stolen from the shop.

The state charged Blackmon with burglary, petit theft, and dealing in stolen property. At trial, Blackmon testified that, on his way home from work in the early morning hours of November 24, he saw some steel bars lying on the side of the road; that the bars were still by the road later that morning when he walked his son to the bus stop at 6:00 a.m.; that he picked up the bars and took them to the scrap yard when they opened; and that, although he noticed the markings on the bars, he thought that the bars were simply junk. At the close of the evidence, Black-mon moved for a judgment of acquittal, arguing that the state did not present evidence to rebut this explanation for his possession of the steel bars. The trial court denied the motion.

The trial court did not instruct the jury that it could not return a guilty verdict for both theft and dealing in stolen property pursuant to section 812.025, Florida Statutes (2009), and Blackmon did not request such an instruction. The jury found Blackmon guilty of both petit theft and dealing in stolen property, but acquitted him of burglary. The trial court thereafter adjudicated Blackmon guilty of both offenses. The trial court also found Black-mon in violation of his probation based on the new law offenses of burglary and theft.

The trial court sentenced Blackmon to time served on the petit theft count and five years in prison on the dealing in stolen property count. Blackmon was also given a concurrent five-year sentence for the violation of probation. The prison sentence was based on a Criminal Punishment Code Scoresheet that scored petit theft as an additional offense (0.2 points). The lowest permissible prison sentence under the scoresheet was 28.85 months.

Blackmon is not precluded from challenging his dual convictions for petit theft and dealing in stolen property on appeal even though he did not raise an objection below. See Rhames v. State, 473 So.2d 724, 727 (Fla. 1st DCA 1985) (holding that defendant not precluded from raising section 812.025 issue on appeal even though no objection was made below because, based on the prohibition in the statute, conviction of both theft and dealing in stolen property would be analogous to being convicted of nonexistent crime); see also Aversano v. State, 966 So.2d 493, 496 (Fla. 4th DCA 2007) (stating that it was fundamental error for the trial court not to instruct the jury on its obligation under section 812.025). Our review of this issue is de novo. See Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010) (stating that de novo standard of review applies to claims of fundamental error); Beckham v. State, 884 So.2d 969, 970 (Fla. 1st DCA 2004) (same).

Section 812.025, Florida Statutes, provides that:

a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

In construing this statute, the Florida Supreme Court explained:

The linchpin of section 812.025 is the defendant’s intended use of the stolen property. The legislative scheme allows this element to be developed at trial and it is upon this evidence that the trier of fact may find the defendant guilty of one or the other offense, but not both.

Hall v. State, 826 So.2d 268, 271 (Fla.2002). The state concedes that the trial court fundamentally erred in convicting Blackmon of both petit theft and dealing in stolen property. The state contends that the proper remedy for this error is for the petit theft conviction to be vacated. Blackmon, however, argues that the proper remedy is a new trial.

In support of his argument, Blackmon relies on Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010). In that case, a jury found the defendant guilty of three counts of dealing in stolen property and one count of grand theft of the same property and in the same course of conduct. Id. at 811. On appeal, the defendant argued that the trial court fundamentally erred by failing to instruct the jury that, pursuant to section 812.025, it could not return a guilty verdict on both grand theft and dealing in stolen property. Id. The defendant argued that the trial court did not cure this error by adjudicating him guilty of only the dealing in stolen property count and, therefore, he was entitled to a new trial. Id. The Fourth District agreed and remanded for a new trial. Id. The court reasoned that the failure to instruct the jury on its obligation under section 812.025 prejudiced the defendant because, if properly instructed, the jury could have found the defendant guilty of only theft, the lesser offense. Id. at 813; see also id. at 811 (quoting Anderson v. State, 2 So.3d 303, 304 (Fla. 4th DCA 2008) (Klein, J., specially concurring) (“If the jury had followed the statute, and was required to choose, it might well have returned a verdict only on the theft charge.”)). Accord Aversano, 966 So.2d at 497 (stating in dicta that “Hall and a plain reading of [section 812.025] make it clear that the state was not entitled to have a jury convict [the defendant] of both [grand theft and dealing in stolen property] counts and then have the trial court adjudicate her guilty of grant theft”).

Kiss certified conflict with the Fifth District’s decision in Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981), where the court held that the proper remedy for the trial court’s failure to instruct the jury that it could not return guilty verdicts for both trafficking in stolen property and grand theft arising out of the same scheme or transaction was to vacate the conviction for the lesser offense. This court followed Ridley in Alexander v. State, 470 So.2d 856 (Fla. 1st DCA 1985), and we have continued to adhere to that decision. See, e.g., Drew v. State, 861 So.2d 110 (Fla. 1st DCA 2003); Day v. State, 793 So.2d 68 (Fla. 1st DCA 2001); Golden v. State, 688 So.2d 419 (Fla. 1st DCA 1997); Schummer v. State, 657 So.2d 3 (Fla. 1st DCA 1995); Gray v. State, 611 So.2d 100 (Fla. 1st DCA 1992); Day v. State, 531 So.2d 426 (Fla. 1st DCA 1988).

In Alexander, the defendant was charged with grand theft of an outboard motor and trafficking in stolen property for selling the same motor. See 470 So.2d at 856. The jury returned a guilty verdict on both counts. Id. At the sentencing hearing, the state agreed with the defendant’s argument that the trial court erred in failing to instruct the jury that it could only return a guilty verdict on one of the counts. Id. at 857. As a result, the trial court vacated the adjudication of guilt as to the grand theft charge and sentenced the defendant only on the trafficking charge. Id. On appeal, this court expressly rejected the same argument that Black-mon presents in this case, i.e., that the failure to instruct the jury that it cannot return a guilty verdict for both theft and dealing in stolen property can only be corrected by the award of a new trial. Id. In doing so, we quoted from Ridley, where the court observed that as a result of the trial court’s failure to properly instruct the jury, “this court, rather than the jury, must now relieve appellant of one of the two convictions.... ” Id. (quoting Ridley, 407 So.2d at 1002).

There is some attraction to the Fourth District’s reasoning in Kiss because section 812.025, by its terms, imposes an obligation on the trier of fact (here, the jury), not the trial court. Nevertheless, we disagree with Kiss that the proper remedy for the trial court’s failure to instruct the jury on section 812.025 is a new trial. Rather, consistent with Alexander, we conclude that the proper remedy is for the conviction of the lesser offense to be vacated. Indeed, as the Fourth District observed in a pre-i&s decision, this is the remedy “routinely imposed under these circumstances.” Anderson, 2 So.3d at 304 (citing prior cases from the Second, Fourth, and Fifth Districts). In our view, this remedy better respects the jury’s determination that the state met its burden to prove the greater offense and also avoids the need to speculate what verdict the jury might have returned had it been required to choose between the greater and lesser offenses. Moreover, in this case, we have no trouble concluding that the jury would have found Blackmon guilty of dealing in stolen property had it been required to choose between that offense and petit theft because the evidence established that Blackmon did not steal the bars for his personal use, but rather that he sold the stolen bars at his earliest opportunity. See Hall, 826 So.2d at 271 (explaining that the crime of dealing in stolen property is directed towards thieves who knowingly deal in the redistribution of stolen property to others, whereas the theft statute is directed towards those persons who steal for personal use and for who redistribution is merely incidental to the normal use of the property).

The remedy of vacating the lesser offense is also consistent with the remedy directed by the Florida Supreme Court in Hall. The defendant in that case was charged with, among other things, grand theft and dealing in stolen property. See 826 So.2d at 269. The defendant pled nolo contendere to those charges. Id. The trial court accepted the plea and adjudicated the defendant guilty of both offenses. Id. On appeal, the defendant argued that the trial court erred when it adjudicated him guilty of both offenses in violation of section 812.025. Id. The Fourth District affirmed, concluding that the statute did not apply when the defendant entered a plea of nolo contendere. Id. at 270.

On review, the Florida Supreme Court quashed the Fourth District’s decision. Id. at 272. The court reasoned that:

Section 812.025 allows the State to charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts, but the trier of fact must then determine whether the defendant is a common thief who steals property with the intent to appropriate said property to his own use or to the use of a person not entitled to the use of the property or whether the defendant traffics or endeavors to traffic in the stolen property.... Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts-Thus, we find that section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo con-tendere.

Id. at 271. Notably, the supreme court did not construe section 812.025 to preclude a defendant from entering pleas to both theft and dealing with stolen property; rather, the court construed the statute to prohibit the trial court from adjudicating a defendant guilty of both offenses. As a result, the court remanded not to allow the defendant to withdraw his pleas, but rather with directions that either the grand theft count or the dealing in stolen property count be reversed and that the defendant be resentenced on the remaining count. Id. at 272.

Accordingly, pursuant to Alexander, and consistent with Hall, we reverse Black-mon’s conviction for petit theft and remand with directions that the trial court vacate that conviction. Resentencing is unnecessary in this case because the record shows that the trial court would have imposed the same sentence for dealing in stolen property under a corrected score-sheet. See State v. Anderson, 905 So.2d 111, 115-16 (Fla.2005) (holding that score-sheet error requires resentencing unless record conclusively shows that same sentence would have been imposed using correct scoresheet). We also certify conflict with Kiss regarding the proper remedy when, contrary to section 812.025, the defendant is convicted of both theft and dealing in stolen property.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

DAVIS and LEWIS, JJ., concur.


author: VAN NORTWICK, J.

text:
    GRANT BUILDERS GROUP, INC. and Thomas Grant, Appellants, v. SOUTH BAY ACE HARDWARE LUMBER AND PAINT CO., Appellee.
    No. 1D10-4013.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Jeffrey M. Stephens, Destín, for Appellants.
    Joseph M. Scheyd, Jr., Destín, for Ap-pellee.
   VAN NORTWICK, J.

Thomas Grant and Grant Builders (collectively “Grant”) appeal the trial court’s order granting South Bay Ace Hardware Lumber and Paint Co. (“South Bay”) final summary judgment. Because the record indicates the existence of disputed issues of material fact, we reverse.

In September 2008, South Bay filed a complaint against Grant seeking to recover a debt in the alleged amount of $104,483.04 for materials and construction equipment purchased on credit by Grant. In its answer, Grant generally denied that it owed the debt and alleged, through its affirmative defenses, that it had paid South Bay for the materials and that South Bay had taken back all materials for which it had not paid. No specific project was referenced in either the complaint or answer and affirmative defenses.

In March 2010, South Bay moved for summary judgment. In support of its motion, South Bay filed an affidavit of its president and majority shareholder, John Pugh, averring that Grant had ordered several staircases and other materials from South Bay for Grant’s Summer Place project but had failed to make payment for the materials. Grant opposed summary judgment and attached to its response an affidavit of Thomas Grant, averring that payment had been made in full for the materials for the Summer Place project despite the fact that the stairs were nonconforming and additional sums of money had to be paid to make the materials fit.

Despite the apparent conflict regarding the issue of payment, after a hearing on South Bay’s motion, the trial court orally granted South Bay summary judgment. In its written order which followed, the trial court found that there was no question of material fact and that South Bay was entitled to judgment as a matter of law. The order did not discuss the dispute as to whether payment for the materials in question had been made. Further, the order was completely silent as to how the trial court resolved the apparent conflict between the parties’ affidavits. The trial court denied Grant’s motion for reconsideration and rehearing, and this appeal follows.

“Summary judgment is proper only when no genuine issue of material fact exists, after all reasonable inferences have been drawn in favor of the party opposing summary judgment.” Hinson v. Anderson Columbia Co., Inc., 897 So.2d 554 (Fla. 1st DCA 2005) (citing Floyd v. Homes Beautiful Constr. Co., 710 So.2d 177, 179 (Fla. 1st DCA 1998)). An order granting final summary judgment is reviewed de novo to determine whether issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. See Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

Here, it is clear from the record that a dispute exists as to whether Grant has made payment for the materials for which South Bay asserts Grant is responsible. Whether a debt was actually owed on the materials sold for the Summer Place project is a factual issue material to the resolution of this case. The trial court could not have concluded that South Bay was entitled to judgment as a matter of law without first resolving the factual dispute presented by the parties’ conflicting affidavits regarding payment for the materials for the Summer Place project. Resolution of such factual disputes is not permissible through summary judgment. See Charles E. Burkett & Associates, Inc. v. Vick, 546 So.2d 1190, 1191 (Fla. 5th DCA 1989) (holding that the trial court should not have attempted to resolve issue raised by conflicting affidavits as to amount due under the contractual agreement at issue through summary judgment).

Accordingly, the trial court’s order granting South Bay Summary Judgment is REVERSED.

THOMAS, and MARSTILLER, JJ„ concur.


text:
    M.W., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4569.
    District Court of Appeal of Florida, First District.
    March 31, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, Therese A. Savona and Anne C. Conley, Assistant Attorneys General, for Appellee.
   PER CURIAM.

M.W. appeals a final order adjudicating her delinquent and committing her to a moderate risk facility. She argues that in departing from the Department of Juvenile Justice’s (Department’s) recommendation of probation, the trial court did not comply with the requirements set out in E.A.R. v. State, 4 So.3d 614 (Fla.2009). In particular, M.W. argues the trial court failed to explain how the more restrictive commitment, which the trial court imposed based on the same factors and evidence considered by the Department, better served the rehabilitative needs of the child. We agree and, consequently, reverse.

A trial court must conduct the following analysis before departing from the Department’s recommendation:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.

Id. at 633. The Court in E.A.R. further explained that:

Simply regurgitating information provided by, and contained within, the DJJ’s comprehensive assessment and PDR does not establish acceptable statutory reasons as to why the court is “disregarding” these documents and the DJJ’s recommended disposition. Rather, such parroting merely communicates that the court concurs with the DJJ’s assessment and PDR but then, for some unexplained, unarticulated “reason,” has imposed a judicially recrafted disposition.

Id. at 638.

Although a trial court may rely on the same evidence and factors as the Department in deciding to impose a more restrictive commitment level, it must set forth its reasons for reaching a different conclusion vis-a-vis the rehabilitative needs of the child. See C.J. v. State, 923 So.2d 553, 554 (Fla. 1st DCA 2006) (reversing where a trial court found probation inappropriate because appellant ran away from home and disregarded court orders but failed to make a finding regarding appellant’s rehabilitative needs); see also E.S.B. v. State, 822 So.2d 579 (Fla. 1st DCA 2002) (reversing where a trial court reweighed the same evidence considered by the Department and failed to explain how appellant’s “long prior” record led it to impose moderate risk commitment as opposed to probation).

In the instant case, the trial court erred because it failed to address why moderate risk commitment, rather than probation, was more suitable to address M.W.’s rehabilitative needs. The trial court’s reasons for disagreement were merely a restatement of facts already known to the Department with no explanation of why it came to a different conclusion. Accordingly, we reverse and remand to provide the trial court an opportunity to enter an order in compliance with E.A.R., or, if the court cannot, impose the probation recommended by the Department. See M.K. v. State, 4 So.3d 1271 (Fla. 1st DCA 2009) (reversing and remanding to provide trial court an opportunity to enter an order in compliance with E.A.R. where trial court failed to conduct proper analysis in departing from the DJJ’s recommendation); see also C.M.H. v. State, 25 So.3d 678, 680 (Fla. 1st DCA 2010) (same).

REVERSED.

WOLF, DAVIS, and HAWKES, JJ., concur.