author: BENTON, C.J. MARSTILLER, J.,

text:
    George William CRAIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2145.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.
    Rehearing Denied Feb. 10, 2012.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant, and George William Crain, pro se, Appellant.
    Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

George William Crain appeals his conviction as a habitual traffic offender for driving “while his license was revoked.” He points out that he has never had a Florida driver’s license (or any other, as far as the record reveals). We reverse his felony conviction, but remand for entry of judgment for driving without a license, a lesser included misdemeanor.

On supplemental briefing, Mr. Crain argues that, because he never had a Florida driver’s license, his conviction for violating section 322.34(5), Florida Statutes (2009), constituted fundamental error. See F.B. v. State, 852 So.2d 226, 230 (Fla.2003) (holding that an “argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be” made in the trial court to preserve the point for appeal); Rodriguez v. State, 964 So.2d 833, 836 n. 1 (Fla. 2d DCA 2007) (“It is ... fundamental error to convict a defendant when the State has failed to prove an element that is essential to the commission of the crime.”). “Conviction of a crime which did not take place is a fundamental error, which the appellate court should correct even when no timely objection or motion for acquittal was made below.” Harris v. State, 647 So.2d 206, 208 (Fla. 1st DCA 1994).

The information charged Mr. Crain with driving “a motor vehicle upon the highways of this State, while his driver’s license or driving privilege was cancelled, suspended or revoked, pursuant to Florida Statutes, Section 322.264 (Habitual Offender), contrary to the provisions of Section 322.34(5), Florida Statutes,” even though section 322.34(5) says nothing about any “driving privilege” distinct from a driver’s license. In the same vein, Elizabeth Dam-guard, a Florida Department of Highway Safety and Motor Vehicles (DHSMV) employee, testified at trial that even a person without a driver’s license could have his “driving privilege” suspended, and that DHSMV takes the view that it can revoke or suspend this disembodied privilege regardless of whether the person has ever had a valid driver’s license, because DHSMV is “revoking and suspending the privilege to have a valid license.”

Over defense objection, the trial court instructed the jury that the state had to prove two elements: (1) that Mr. Crain drove a motor vehicle upon a highway in this state, and (2) that, at the time, his “driver’s license or driving privilege was revoked as a habitual traffic offender.” (Emphasis supplied.) In addition to altering the statutory language by inserting “or driving privilege,” the trial court also added its own, perhaps contradictory, definition of a distinct “driving privilege,” viz., “the privilege to drive if licensed by the State of Florida with a valid driver’s license.”

Mr. Crain was convicted of violating section 822.34(5), which makes it a third-degree felony for a person to drive while his driver’s license is revoked pursuant to section 322.264, Florida Statutes (2009). The Legislature clearly defined “driver’s license” as a certificate authorizing an individual to drive, see § 322.01(17), Fla. Stat. (2009), and “revocation” is defined as the termination of a licensee’s privilege to drive. See § 322.01(36), Fla. Stat. (2009). Chapter 322 does not define “driving privilege.”

While deliberating, the jury posed two questions that go to the heart of the prosecution’s misreading of the statute: “Is having the privilege to drive contingent on having ever had a license?” and “Can you have the privilege taken away if you’ve never had a license?” The trial judge answered: “The only way I can respond to this is to refer you back to your jury instructions and the arguments that you heard from the attorneys and ask you to look again at the evidence that you may have before you in the form of the CDR [certified driving record] and continue to work on your verdict.” The trial judge’s answer did not rely on the statutory language, or apply “the rule that criminal statutes must be strictly construed, [in order that] nothing not clearly ... described in a statute’s very words, as well as manifestly intended by the legislature, shall be considered included within its terms.” Ferguson v. State, 377 So.2d 709, 711 (Fla.1979) (citing Earnest v. State, 351 So.2d 957 (Fla.1977)).

Section 322.34(5), the provision under which appellant was convicted of a third-degree felony, does not outlaw driving by drivers never issued a license to drive. Another provision, section 322.03(1), Florida Statutes (2009), proscribes driving without a valid driver’s license: “Except as otherwise authorized in this chapter, a person may not drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license issued under this chapter.” Driving without a valid license is a second-degree misdemeanor. See § 322.39, Fla. Stat. (2009).

“Driver’s license” is defined as “a certificate that, subject to all other requirements of law, authorizes an individual to drive a motor vehicle and denotes an operator’s license as defined in 49 U.S.C. s. 30301.” § 322.01(17), Fla. Stat. (2009). Mr. Crain was convicted of violating section 322.34(5), Florida Statutes (2009) which provides:

Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis supplied.) Section 322.264, Florida Statutes (2009), defines a “habitual traffic offender” as:

[A]ny person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period: (1) Three or more convictions of any one or more of the following offenses arising out of separate acts:
(d) Driving a motor vehicle while his or her license is suspended or revoked.

(Emphasis supplied.) Furthermore, DHSMV “shall revoke the license of any person designated a habitual offender, as set forth in s. 322.264, and such person shall not be eligible to be relicensed for a minimum of 5 years from the date of revocation, except as provided for in s. 322.271.” § 322.27(5), Fla. Stat. (2009) (emphasis supplied).

“One of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter.” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991). “Revocation” is “the termination of a licensee’s privilege to drive.” § 322.01(36), Fla. Stat. (2009) (emphasis supplied). The Second District in Carroll v. State, 761 So.2d 417, 418 (Fla. 2d DCA 2000), adopted the state’s argument that “even though appellant did not have a driver’s license, he did have a ‘driving privilege’ that had been revoked due to his status as a habitual traffic offender, and the revocation of this driving privilege was the equivalent of revocation of a driver’s license for purposes of section 322.264, Florida Statutes (1997).” But this reads language into the statute that the Legislature did not enact.

Nor can it be said that the Legislature “manifestly intended” section 322.34(5) to apply to drivers who have never been issued a license, given the contrasting language in the very next subsection: Section 322.34(6), Florida Statutes (2009), applies even to drivers who have never been issued a license because subsection (6), unlike subsection (5), separately addresses the offenses of driving without a license and driving after cancelation, suspension or revocation of a driver’s “license or ... privilege”:

Any person who operates a motor vehicle:
(a) Without having a driver’s license as required under s. 322.03; or
(b) While his or her driver’s license or driving privilege is canceled, suspended, or revoked pursuant to s. 316.655, s. 322.26(8), s. 322.27(2), or s. 322.28(2) or (4), and who by careless or negligence operation of the motor vehicle causes the death of or serious bodily injury to another human being is guilty of a felony of the third degree....

(Emphasis supplied.) In subsection (6), the Legislature drew a distinction between the act of driving without a valid driver’s license and the act of driving after cancel-ation, suspension or revocation of a driver’s “license or ... privilege.” Under subsection (5), however, because the state did not prove that Mr. Crain ever had a driver’s license, it could not prove that he drove while his driver’s license was revoked.

Although certain provisions in chapter 322 contain the term “driving privilege,” the provisions that pertain to cases like the present case refer only to a “driver’s license,” “a certificate that ... authorizes an individual to drive a motor vehicle.” § 322.01(17), Fla. Stat. (2009). It “ ‘is a firmly established rule that “Courts must apply a statute as they find it, leaving to the legislature the correction of assorted inconsistencies and inequalities in its operation.” ’ ” Guilder v. State, 899 So.2d 412, 419 (Fla. 4th DCA 2005) (quoting State v. Aiuppa, 298 So.2d 391, 404 (Fla.1974)).

Accordingly, we reverse and remand with instructions to vacate Mr. Crain’s conviction as a habitual traffic offender for driving while his (nonexistent) license was revoked, and adjudicate him guilty of the lesser included offense of driving without a valid driver’s license. See § 924.34, Fla. Stat. (2009).

Reversed and remanded with directions.

CLARK, J., concurs.

MARSTILLER, J., dissents with opinion.

MARSTILLER, J.,

dissenting.

I respectfully dissent from the majority opinion for I believe it reaches a result not intended by the Legislature. Section 322.34 sets forth an overall scheme by which the Legislature penalizes individuals who persist in driving even though their driver’s license or driving privilege has been suspended or revoked. Although subsection (5), the provision at issue here, does not refer to revocation of one’s “driver’s license or driving privilege,” virtually all the other subsections in the statute do. See §§ 322.34(1) (prohibiting driving while “driver’s license or driving privilege” canceled, suspended or revoked); 322.34(2) (prohibiting knowingly driving while “driver’s license or driving privilege” canceled, suspended or revoked); 322.34(6) (making it a third degree felony to cause death or serious bodily to a person by negligent operation of vehicle when “driver’s license or driving privilege” canceled, suspended or revoked under specified statutes); 322.34(7) (prohibiting driving of commercial vehicle while “driver’s license or driving privilege” canceled, suspended or revoked); 322.34(8)(a) (“Upon the arrest of a person for the offense of driving while the person’s driver’s license or driving privilege is suspended or revoked,” arresting officer must determine, inter alia, if revocation is for habitual traffic offender status) (emphasis added); 322.34(10)(a)(6) and (b) (providing a less severe criminal penalty for driving when one has “been designated a habitual traffic offender under s. 322.264(1) as a result of suspensions of his or her driver’s license or driver privilege ” for specified violations) (emphasis added).

The Legislature’s repeated reference to a driving privilege and use of the disjunctive “or” in the phrase “driver’s license or driving privilege” indicate that one does have, as the State posits in this appeal, a privilege that can be suspended or revoked even in the absence of a valid license. Indeed, chapter 322 is replete with provisions referring to a “driver’s license or driving privilege.” One can easily envision circumstances in which an unlicensed driver could commit a prohibited act for which his or her driving privilege is taken away. For example, an unlicensed driver would lose her driving privilege under section 322.26, Florida Statutes, which requires DHSMV to “revoke the license or driving privilege of any person upon receiving a record of such person’s conviction of’ certain offenses, including murder or manslaughter resulting from the operation of a vehicle, or commission of a felony using a vehicle. Or, as provided in section 322.34(10)(a)l, a parent who does not have a driver’s license may lose her driving privilege, i.e., the ability to obtain a license, for failing to pay child support.

Ignoring the other provisions in section 322.34 and refusing to read the statute in pan materia leads the majority to unreasonably conclude that subsection (5) “does not outlaw driving by drivers never issued a license to drive.” (Majority op. at 120) True, courts must strictly construe penal statutes. But “[i]t is also true that a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). “[A]lthough strict construction of penal statutes is generally proper, no statute should be construed so as to defeat the intention of the legislature.” Dep’t of Highway Safety and Motor Veh. v. Patrick, 895 So.2d 1131, 1136 (Fla. 5th DCA 2005). The legislative intent behind section 322.34(5) is to punish habitual traffic offenders who persist in driving unlawfully more severely than other offenders who have not been branded “habitual.” Today’s decision allows the appellant — and now every potential habitual traffic offender — to escape punishment by exploiting an instance of imprecise statutory drafting. I am also concerned that the majority’s reading of sections 322.264, 322.27(5) and 322.34(5) as operating only against licensed persons not only obstructs legislative intent as to those provisions, but also affects the operation of any other provisions in chapter 322 that may lack the phrase “or driving privilege.”

For these reasons, I dissent from the majority opinion and would affirm the appellant’s conviction.

      . After some confusion surrounding the filing of the record and two extensions of time for filing the initial brief, Mr. Crain's original counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). But we requested supplemental briefing from the Office of Criminal Conflict and Civil Regional Counsel on the issue of whether appellant had been convicted of a crime not proscribed by section 322.34(5), Florida Statutes (2009), whether the jury instructions were erroneous as given, and whether the trial court erroneously instructed the jury in response to the jury’s questions. We note that Mr. Crain has by now already served his eighteen-month sentence.

      . Even if conviction of a nonexistent crime were not fundamental error, use of the altered jury instructions over objection would require remand. See Brown v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009) (Where "'an instruction is confusing or misleading, prejudicial error occurs where the jury might reasonably have been misled and the instruction caused them to arrive at a conclusion that it otherwise would not have reached.’ ” (quoting Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001))).

      .The state moved a certified copy of Mr. Cram's driving record into evidence, which showed that his "driver’s license” had been revoked as a habitual traffic offender four times, most recently on March 30, 2004, even though the record was clear that he had never actually had or been issued a driver’s license. The state does not argue otherwise.

      . Mr. Crain concedes that one can obtain the privilege to drive in Florida via a statutory exemption pursuant to section 322.031, Florida Statutes (2009) or section 322.04, Florida Statutes (2009), but argues that, because Mr. Crain has neither a driver’s license nor falls within one of the statutory exemptions, he does not have a privilege to drive. The state does not contend that Mr. Crain has any sort of statutory privilege to drive; instead, it argues that all individuals have a due process right in the privilege to obtain a driver’s license.

      . The Second District reasoned that, since the Legislature used the term “driving privilege” in section 322.27l(l)(b) when referring to section 322.27(5), which uses the term “driver’s license,” the Legislature intended the terms "to mean the same thing and to apply equally to either situation.” Carroll v. State, 761 So.2d 417, 419 (Fla. 2d DCA 2000). On that basis, the court found that Carroll’s "lack of a driver’s license did not relieve him from conviction as a habitual traffic offender whose driver's license (driving privilege) had been revoked or suspended.” Id. See State v. Bletcher, 763 So.2d 1277, 1278 (Fla. 5th DCA 2000) (reversing trial court’s dismissal of charge under section 322.34(5), citing Carroll)', see also Newton v. State, 898 So.2d 1133 (Fla. 4th DCA 2005) (per curiam affir-mance citing Carroll and Bletcher).

      . For example, section 322.271(l)(b), Florida Statutes (2009), which is referenced in section 322.27(5), provides that a “person whose driving privilege has been revoked under s. 322.27(5) may, upon expiration of 12 months from the date of such revocation, petition the department for reinstatement of his or her driving privilege.” But, section 322.27(5), Florida Statutes (2009), states that DHSMV shall revoke a habitual offender's license.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Virginia CABELLO, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, etc., Appellee.
    No. 3D11-1084.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.

      Virginia Cabello, in proper person.
    Tracy Lee Cooper, Chief Appellate Counsel, Tallahassee, for appellee.
    Before SUAREZ, CORTIÑAS, and EMAS, JJ.
   SUAREZ, J.

Virginia Cabello appeals from a final order from the Agency for Health Care Administration (“AHCA” or “Agency”) reducing home health care hours. Based on our standard of review, we must affirm.

Virginia Cabello is J.C.’s mother. J.C. is fifteen years old, autistic, and needs constant supervision, as well as assistance with her activities of daily living. J.C. receives Medicaid assistance, and attends school from 7:30 a.m. until 3:00 p.m., Monday through Friday. Cabello works full time, is the primary caregiver for her household, and cares for J.C. during her home hours and weekends; she must also care for her two other children, ages two and twelve. In November 2010, J.C.’s primary care physician requested Medicaid home health care assistance for J.C.’s personal needs, as well as skilled nursing visits to the home. The home health agency in turn requested a Certified Nurse Assistant to provide care for J.C Monday through Sunday for a total of 992 hours over the 180-day coverage period. The hours were initially approved by the first physician consultant for AHCA. On January 29, 2011, a second physician consultant issued a correction, concluding that the hours should be denied because J.C.’s diagnoses were not supported by Medicaid Home Health Services coverage as they were psychiatric in nature. AHCA then denied a total of 663 home health hours and approved only 329 hours for the coverage period (December 2, 2010, through January 30, 2011). Cabello appealed. At the administrative appeals hearing, AHCA’s witness testified that there was no evidence that the home health agency knew that J.C. was diagnosed with autism, and that all of J.C.’s issues are related to mental health and psychiatric services, which are not covered under Medicaid’s Home Health Services. Cabello’s witness testified that J.C.’s primary diagnosis is autism, and that all of the physician’s orders were for needs associated with autism. The Agency reconsidered and agreed to allow limited weekly home health services to assist J.C. with personal care for the remainder of the service period. The Hearing Officer denied Cabello’s appeal from the Agency’s denial of the additional 663 hours.

Although we share Cabello’s concerns for the care and well-being of her child, based on our standard of review we must affirm the Hearing Officer’s ruling, as it was based on substantial and competent evidence in the record showing that the services provided were not authorized as medically necessary, such as to meet the requirements of Medicaid’s Home Health Services Program. Fla. Admin. Code R. 59G-1.010(166)(a). AHCA has encouraged Cabello to seek out other Medicaid and community programs that are available to meet J.C.’s mental health needs.

Affirmed.

      . Fla. Admin. Code R. 59G-1.010(166)(a) and (c) provides: "Medically necessary” or "medical necessity” means that the medical or allied care, goods, or services furnished or ordered must:
      (a) Meet the following conditions:

        5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.

        (c) The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a medical necessity or a covered service. [Emphasis supplied].


author: PER CURIAM.

text:
    Nasra ARAFAT, Appellant, v. STATE FARM INSURANCE COMPANY, Andrea Cardinale and Craig Cardinale, Appellees.
    No. 4D11-713.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Rehearing Denied March 5, 2012.
    Nasra M. Arafat, Coral Springs, pro se.
    Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellees Andrea and Craig Cardinale.
   PER CURIAM.

Affirmed. See Bryant v. Tarman, 21 So.3d 137 (Fla. 5th DCA 2009).

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    Raymond Nathan WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2335.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.
    Carlos J. Martinez, Public Defender, and Melissa Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Wallace v. State, 939 So.2d 1123, 1124 (Fla. 3d DCA 2006).


author: WELLS, Chief Judge.

text:
    Keyion GALE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2059.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.
    Rehearing Denied Feb. 15, 2012.
    C. Marie Brevitl^Schoop, Miami, and Orville McKenzie, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and FERNANDEZ, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Keyion Gale appeals from an order denying as untimely his Florida Rule of Criminal Procedure 3.850 motion to vacate his no contest plea, which was entered on May 9, 2009. The postconviction motion, which was filed on July 12, 2011, claimed that the trial court failed to inform Gale of the deportation consequences of his plea as required by Florida Rule of Criminal Procedure 3.172(c)(8). We affirm the denial of this claim because it was not raised within the two-year period prescribed by Rule 3.850. See State v. Green, 944 So.2d 208, 219 (Fla.2006) (providing that “a defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final”). The postconviction motion also claimed that trial counsel failed to advise Gale that accepting a plea would subject him to deportation, citing to Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We affirm the denial of this claim as this court has found that Padilla has no retroactive effect, and thus does not apply to pleas taken before Padilla was announced. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

Affirmed.


text:
    Jean-Marie CHARLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2819.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.
    Gennaro Cariglio, Jr., Miami, for appellant.

      Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Jerry W. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3108.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.
    Jerry W. Smith, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011) (same).


author: COHEN, J.

text:
    Tacrian GOSS, Appellant, v. HUMAN SERVICES ASSOCIATES, INC., VisionQuest National, Ltd., and Morgan Lee Brown, Appellees.
    Nos. 5D10-828, 5D10-829.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.

      Richard A. Filson of Filson & Penge, P.A., Sarasota, for Appellant.
    Wm. Jere Tolton, III, and Reba A. Abraham of Ogden, Sullivan & O’Connor, P.A., Tampa, for Appellee, Human Services Associates, Inc.
    Benjamin L. Bedard and George P. Roberts, Jr., of Roberts Reynolds Bedard & Tuzzio, P.A., West Palm Beach, for Appel-lee, VisionQuest National, Ltd.
   COHEN, J.

Tacrian Goss (“Goss”) appeals from the trial court’s final orders granting summary judgment in favor of Human Services Associates, Inc. (“HSA”) and VisionQuest National, Ltd. (‘VisionQuest”), entered in his negligence actions against the companies for sexual abuse perpetrated on him by Morgan Brown (“Brown”). We affirm in part, reverse in part.

HSA operated Rivendell Youth Ranch (“the Ranch”), a group care facility that provided residential and therapeutic services for children with emotional difficulties in need of foster care placement. In October 2004, HSA entered into a subcontract agreement with VisionQuest, which was superseded by a management and consulting agreement on November 15, 2004.

Under the management and consulting agreement, VisionQuest agreed to send two of its employees to the Ranch to assess HSA’s operation and management of its program. Those VisionQuest employees were required to meet with and make recommendations to HSA management employees based on their assessments. The VisionQuest employees were to operate solely in an advisory capacity and not make any operational or managerial decisions regarding the program. HSA retained sole responsibility for the Ranch and VisionQuest assumed no legal or equitable obligations under HSA’s existing contracts. The contract included a mutual indemnification and hold harmless clause for liabilities incurred by the other. The agreement also specified that the parties were not working as a joint venture or partnership, yet it acknowledged that Visi-onQuest may assume HSA’s position in the program at some point in the future.

Pursuant to the agreement, VisionQuest sent Brown and her husband to the Ranch. Brown, then twenty-four years old, conducted an equestrian program and provided general care and counseling for the children, while her husband acted as Visi-onQuest’s primary supervisor over HSA’s operation. Brown’s job entailed rehabilitating troubled youths by building relationships with them, which allegedly included physical encouragement in the form of hugging and hand-holding. One of the children in her care was Goss, then age fifteen.

Within one month, Brown and Goss’s relationship escalated into a sexual one. The trysts occurred over a period of time at locations on and off the Ranch. On one occasion, in January 2005, Brown drove Goss and another boy away from the Ranch to a hotel, where she stayed overnight with Goss. She returned the boys and after being questioned by law enforcement, admitted to having sexual relations with Goss. The State ultimately charged Brown -with unlawful sexual contact with a minor.

Deposition testimony reveals that reports, rumors, and suspicions about Brown and Goss circulated among Ranch employees prior to the hotel incident. The information reported ranged from Goss having a crush on Brown and the two kissing in a private dressing area, to having sex in an administration building and having an affair. Some children, and at least one staff employee, were eye-witnesses to these events, and the information was passed on to Ranch supervisors.

The record also demonstrates conflicting evidence regarding which entity — HSA or VisionQuest — was exercising supervisory control of the Ranch. The management and consulting agreement stated Vision-Quest was to act solely in an advisory role, but other evidence indicated that Vision-Quest’s authority exceeded the originally contracted-for capacity. One HSA vice president testified that VisionQuest assumed control in October 2004, and that HSA employees at the Ranch had to report to VisionQuest. Another HSA executive testified that HSA and VisionQuest were involved in a joint effort between November 2004 and January 2005, while a third HSA executive stated that Vision-Quest did not take over the Ranch until mid-2006. In contrast, a VisionQuest executive testified that HSA was operating the Ranch at the time of the incident between Brown and Goss, while another stated that HSA and VisionQuest were jointly managing the Ranch at that time. This confusion was felt by Ranch employees, where at least one employee testified he did not know for which company he worked. Some employees believed they had to report to VisionQuest, while others reported only to HSA supervisors.

As a result of the incident with Brown, Goss filed negligence actions against HSA and VisionQuest. His second amended complaint generally alleged HSA was negligent in supervising its subcontractors and in failing to prevent the harm that occurred. Similarly, he generally alleged Vi-sionQuest was negligent in supervising Brown and was vicariously liable for the actions of its employee.

HSA and VisionQuest filed motions for summary judgment. At the hearing, HSA argued it owed no duty to Goss because it did not employ Brown or otherwise have control over her since HSA delegated the managerial responsibility of the Ranch to VisionQuest. HSA also claimed the sexual abuse was not foreseeable. VisionQuest, in response to the general negligence claim, asserted that the sexual assault was not foreseeable; and as to the vicarious liability claim, argued that the criminal conduct occurred outside the course and scope of employment. After the hearing, the trial court entered summary judgments in favor of HSA and VisionQuest, without specifying the legal grounds.

A trial court’s order granting summary judgment is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. The movant has the initial burden of demonstrating the nonexistence of any genuine issue of material fact, but once he tenders competent evidence to support his motion, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. Olson v. Crowell Plumbing & Heating Co., 48 So.3d 139, 142 (Fla. 5th DCA 2010). A summary judgment is not the proper vehicle for testing whether a plaintiff can actually prove his case; rather, it is designed to test whether the record conclusively shows that the claim cannot be proved as a matter of law. Copeland v. Albertson’s Inc., 947 So.2d 664, 667 (Fla. 2d DCA 2007).

In the present case, the summary judgment cannot be sustained on the basis that no duty was owed to Goss. A facility in charge of sheltering and caring for foster children has, at the very least, a duty to conform to a certain standard of conduct for their protection against unreasonable risks of harm. See Williams v. Davis, 974 So.2d 1052, 1056 (Fla.2007) (explaining the four elements of a negligence claim); see also Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1186 (Fla.2003) (undertaker’s doctrine). HSA argued to the trial court it owed no duty to Goss because it delegated control over the Ranch to VisionQuest and did not employ Brown. The record, however, reflects conflicting evidence on the question of which entity was in charge of the facility at the time of the incident. Because there is conflicting evidence as to whether HSA had transferred control of the Ranch to VisionQuest, HSA was not entitled to summary judgment based on its argument it owed no duty to Goss. See McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992) (“the trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.”).

There is also evidence in the record to justify a reasonable juror’s conclusion that Goss’s losses were proximately caused by breach of the duty owned to him. The alleged negligence in this case consists of permitting an employee, or in the case of HSA, the employee of a subcontractor, access to a child, while the employer or contractor knew or should have known that access by the employee presented an unreasonable risk of harm to the child. See generally Storm v. Town of Ponce Inlet, 866 So.2d 713, 716-17 (Fla. 5th DCA 2004) (negligent supervision and retention). Proximate cause is concerned with whether and to what extent defendant’s conduct was foreseeable and substantially caused the specific injury that actually occurred. McCain, 593 So.2d at 502. Both HSA and VisionQuest argued to the trial court they were not negligent because Brown’s criminal actions were unforeseeable, rendering their liability absolved as a matter of law.

The record contains evidence, however, from which a jury could conclude that HSA or VisionQuest knew or should have known of Brown’s inappropriate relationship with Goss as it took place. The jury would be entitled to attribute this knowledge to whichever entity it found to be in charge of the Ranch. Moreover, the evidence would permit the jury to find that the sexual assault by Brown was a foreseeable consequence of the entity-in-charge’s negligence in failing to take reasonable steps to protect Goss from harm. See Hardy v. Pier 99 Motor Inn, 664 So.2d 1095, 1097 (Fla. 1st DCA 1995) (determining injurious conduct of third party is foreseeable if hotel operator knew of danger and had opportunity to protect against it); see also Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 562-63 (Fla.1997) (recognizing that negligent tortfeasors cannot reduce liability by shifting it to an intentional tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence); Niece v. Elmview Group Home, 131 Wash.2d 39, 929 P.2d 420 (1997) (holding sexual assault of resident by employee of group home is not legally unforeseeable as long as it was within field of danger which should have been anticipated). Because reasonable people could differ as to whether Brown’s criminal acts were foreseeable in light of notice of her inappropriate relationship with Goss, the proximate cause issue must be resolved by the jury.

We do, however, affirm entry of summary judgment on the vicarious liability claim brought against VisionQuest. Vicarious liability is not based on the negligence of the employer, but rather the negligence of the employee imputed to the employer. Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 468 (Fla.2005). “The general rule is that an employer cannot be held liable for the tortious or criminal acts of an employee, unless they were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.” Nazareth v. Herndon Ambulance Serv., Inc., 467 So.2d 1076, 1078 (Fla. 5th DCA 1985). The question of whether an employee is acting within the course and scope of employment, where the facts are not in dispute, is that of law. Saullo v. Douglas, 957 So.2d 80, 86 (Fla. 5th DCA 2007).

VisionQuest sought summary judgment as to this claim on the basis that Brown’s criminal acts were committed outside the course and scope of her employment. The conduct of an employee is considered within the course and scope of employment when it (1) is of the kind the employee is hired to perform, (2) occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) is activated at least in part by a purpose to serve the master. Sussman v. Fla. E. Coast Props., Inc., 557 So.2d 74, 75-76 (Fla. 3d DCA 1990). Sexual assaults and batteries committed by employees are generally “held to be outside the scope of an employee’s employment and, therefore, insufficient to impose vicarious liability on the employer.” Nazareth, 467 So.2d at 1078. An exception exists when the employee purported to act on behalf of the employer or when the employee was aided by the agency relationship. Id.

Here, despite the fact that at least one of the sexual assaults occurred at Brown’s place of work, the sexual assault was not within the course and scope of her employment because the act was not in furtherance of her employment with VisionQuest. See Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So.2d 353, 358 (Fla. 3d DCA 2001) (holding pastor’s criminal conduct was independent, self-serving act and did not occur within course and scope of employment); Agriturf Mgmt., Inc. v. Roe, 656 So.2d 954, 955 (Fla. 2d DCA 1995) (finding employee’s acts of cleaning and putting away equipment occurred within course and scope, but not sexual abuse). Brown’s job duties entailed working with the equestrian program and counseling; the sexual assault was not committed for any therapeutic purpose. In fact, Brown actively concealed the affair because she knew that it was conducted only to satisfy her carnal desires and not in furtherance of her duties under Vision-Quest. We find Brown’s sexual assault of Goss was outside the course and scope of her employment. Additionally, we find Brown was not aided by the agency relationship and, thus, VisionQuest cannot be held vicariously liable.

We reverse the trial court’s orders granting summary judgment on Goss’s negligence claims against HSA and Vision-Quest. We affirm the trial court’s order granting summary judgment on Goss’s vicarious liability claim against VisionQuest.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

ORFINGER, C.J. and EVANDER, J., concur.


text:
    Leandro PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2461.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2012.

      Carl J. Dicampli of Lorenzo and Lorenzo, P.A., Tampa, for Appellant.
   PER CURIAM.

Leandro Perez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in post-conviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

WALLACE, KHOUZAM, and MORRIS, JJ., Concur.


author: CRENSHAW, Judge.

text:
    James Randy DEMICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-539.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2012.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

In this Anders appeal, we affirm James Randy Demick’s judgments and sentences but remand for the trial court to correct two scrivener’s errors on the amended order revoking his probation. The amended order stated that Demick admitted to violating conditions two and five. But Dem-ick did not admit to violating anything; rather, the trial court found Demick in violation of his probation after an eviden-tiary hearing. Similarly, there was nothing presented at the hearing establishing that Demick violated condition two of his probation, which required him to pay monthly fees associated with the costs of his supervision. The trial court instead orally pronounced that Demick violated condition five of his probation by committing two hew law offenses. Because it is clear from the trial court’s oral pronouncement and the substantive requirements of condition five that the trial court intended to find Demick only in violation of this condition, we conclude that the trial court’s notation that Demick also violated condition two was a scrivener’s error. See Washington v. State, 37 So.3d 376 (Fla. 1st DCA 2010). Accordingly, we affirm the revocation of Demick’s probation but remand for the trial court to correct the revocation order to reflect its oral pronouncement. See Cain v. State, 49 So.3d 865 (Fla. 2d DCA 2010).

Affirmed and remanded.

LaROSE and MORRIS, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Demick raised both scrivener’s issues to the trial court in his motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2), but the trial court only addressed an unrelated issue concerning the length of his sentence.


text:
    STATE of Florida, Appellant, v. Paul BROSKY, Appellee.
    No. 3D10-1503.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.

      Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, and Douglas Glaid, Senior Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

The State of Florida seeks to reverse a trial court order dismissing charges against Paul Brosky. We reverse and remand for reinstatement of those charges.

The trial court’s sua sponte dismissal of the charges was an abuse of discretion, no matter how frustrated (and rightly so) the trial judge was with both sides over the progress of this matter. Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or to dismiss charges is a determination to be made by solely the State. State v. Bonnett, 985 So.2d 1194 (Fla. 3d DCA 2008) (finding dismissal of charges as sanction for State’s behavior was reversible error); State v. Leon, 967 So.2d 437, 437 (Fla. 4th DCA 2007) (“[W]e agree that reversal is required because the trial court’s action in dismissing the case was an abuse of discretion and constituted an improper infringement upon the State’s discretion to prosecute.”); Dawson v. State, 951 So.2d 931, 933 (Fla. 4th DCA 2007) (“This court has previously held that the dismissal of an information is ‘an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists.”); State v. L.E., 754 So.2d 60, 61 (Fla. 3d DCA 2000) (“This court has repeatedly stated that the dismissal of criminal charges is an extreme sanction reserved solely for those instances where no feasible alternative exists.”); State v. Bryant, 549 So.2d 1155, 1155 (Fla. 3d DCA 1989); State v. Brown, 416 So.2d 1258 (Fla. 4th DCA 1982); see also State v. J.G., 740 So.2d 84, 85 (Fla. 3d DCA 1999); State v. Cohen, 662 So.2d 430 (Fla. 3d DCA 1995); State v. S.M.F., 546 So.2d 20, 21 (Fla. 3d DCA 1989).

The reason that dismissal of criminal charges should be used as a last resort is that this sanction punishes the public, not the State or the witness who fails to appear, and results in a windfall to the appellee. See, e.g., State v. L.E., 754 So.2d 60, 61 (Fla. 3d DCA 2000); State v. T.H., 592 So.2d 759, 760 (Fla. 5th DCA 1992); State v. Lowe, 398 So.2d 962, 963 (Fla. 4th DCA 1981).

The prosecutor has the sole discretion to charge and prosecute criminal acts. McArthur v. State, 597 So.2d 406, 408 (Fla. 1st DCA 1992). This discretion is not affected by a victim’s change in desire to prosecute. Id,.; State v. Greaux, 977 So.2d 614, 615 (Fla. 4th DCA 2008). It is not altered by a victim’s refusal to testify. State v. Bryant, 549 So.2d 1155, 1155 (Fla. 3d DCA 1989). This discretion is inviolate “notwithstanding the court’s belief that the best interests of the public and the parties would be served by dismissal.” State v. Cleveland, 390 So.2d 364, 367 (Fla. 4th DCA 1980), approved, 417 So.2d 653 (Fla.1982); State v. Wheeler, 745 So.2d 1094, 1096 (Fla. 4th DCA 1999). Similarly, the decision to prosecute does not lie with the victim of a crime. McArthur, 597 So.2d at 408; Bryant, 549 So.2d at 1155; Brown, 416 So.2d at 1259.

Further, Florida Rule of Criminal Procedure 3.190(c)(4) enumerates the grounds upon which the court may entertain a motion to dismiss. None of these grounds are present in this matter. Without a motion to dismiss the charges, the decision to nolle pros an information is vested solely in the discretion of the State. See In the Interest of S.R.P., 397 So.2d 1052 (Fla. 4th DCA 1981); State v. Braden, 375 So.2d 49 (Fla. 2d DCA 1979). There was no motion to dismiss the pending charges. We therefore reverse the order of dismissal and remand for reinstatement of the charges against the defendant.

Reversed and remanded.


author: RAMIREZ, J.

text:
    D.M., the Father, and B.A., the Mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    Nos. 3D11-1578, 3D11-1293.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, for appellant D.M and Kevin Coyle Colbert, Assistant Counsel, for appellant B.A.; Lá-veme Pinkney and Ricardo Rodriguez, Florida International University College of Law, for appellant A.M.
    Karla Perkins, Appellate Counsel, for appellee Department of Children and Families; Hillary Kambour, Appellate Counsel, for appellee Guardian Ad Litem Program; Jennifer A. McLoone, Shook Hardy & Bacon LLP, for appellee, M.M.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

This is an appeal of termination of parental rights for failure to substantially comply with the required case plan. We reverse as to the Mother, B.A., and affirm as to the Father, D.M.

In November 2009, the Department of Children and Families filed a petition for dependency of A.M. (ten years old), S.M. (five years old), and M.M. (seven years old) due to exposure to domestic violence in the home, and alleged abuse and abandonment. B.A. was the victim of D.M.’s alleged violence. Initially, the children were left with B.A., and D.M. was ordered to stay away. The trial court then placed the children with a relative. M.M. subsequently was placed in a therapeutic home away from his siblings. Later, A.M. and S.M. also were placed in a foster home. Both parents agreed to the findings of dependency.

The parents were given a case plan that required them to complete evaluations and therapy, limited their interactions with the children, and required observation of the children by the Guardian Ad Litem (GAL) and various professionals. The case plan required that D.M. attend anger management and therapy. The case plan also required B.A. to attend therapy, in order to understand and resist further domestic violence threats to protect herself and her children.

Both parents had difficulty completing the program. B.A. initially was sent to a program for domestic violence offenders, not victims. She then attended some sessions with the correct program, but later switched therapists and attended only a few sessions, which were ongoing at the time of the trial. D.M. completed the parenting class, the mental health assessment and psychological evaluation, and domestic violence classes. He did not complete his anger management and his individual therapy. His individual therapy required payment, and lack of resources from which to pay was D.M.’s alleged basis for not completing the therapy. After less than a year, the Department, unsatisfied with the parents’ efforts thus far to meet the case plan requirements, filed for termination of parental rights (TPR).

At the TPR hearing, the trial court heard testimony from the various professionals assigned to oversee the case plan. A case coordinator testified regarding her interviews of the children, as well as the results of testing and evaluation. A psychologist testified regarding his concerns because of D.M.’s manner of addressing the domestic violence incidents. A substance abuse counselor also testified regarding the D.M.’s failure to admit inflicting any abuse. A psychologist recommended more therapy for B.A. The case manager testified regarding visitations between the children and the parents. The Guardian ad Litem (GAL) testified that A.M. desired to return to B.A., and that he observed positive traits in the children’s personalities.

Under Florida law, parental rights may be terminated:

When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 9 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child....
2. The parent or parents have materially breached the case plan. Time is of the essence for permanency of children in the dependency system. In order to prove the parent or parents have materially breached the case plan, the court must find by clear and convincing evidence that the parent or parents are unlikely or unable to substantially comply with the case plan before time to comply with the case plan expires.

§ 39.806(2)(e), Fla. Stat. (2010).

On appeal, the standard of review for a TPR judgment is “whether the judgment is supported by substantial and competent evidence” that the statutory requirements were met. See T.V. v. Dep’t of Children & Family Servs., 905 So.2d 945, 946 (Fla. 3d DCA 2005). This standard is “highly deferential.” C.G. v. Dep’t of Children & Families, 67 So.3d 1141, 1143 (Fla. 3d DCA 2011).

Florida law requires that “before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.” Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991). Consequently, “DCF must proceed in a narrowly tailored manner and must prove that, in addition to the statutory requirements for termination of parental rights, termination is the least restrictive means of protecting the child from serious harm.” N.S & D.R. v. Dep’t of Children & Families, 36 So.3d 776, 778 (Fla. 3d DCA 2010). To meet this requirement, the evidence must show that the Department “made a good faith effort to rehabilitate the parent and unify the family through a case plan and related services.” C.G., 67 So.3d at 1143.

If the Department contends failure to comply with the case plan supports termination, it must show the failure to comply was attributable to the parent, not the Department, and that failure to participate endangered the child. Id. If the Department contends services would be futile, the evidence must clearly and convincingly show that danger to the child will continue regardless of the services. See, e.g., C.G., 67 So.3d at 1144-45; see also L.D. v. Dep’t of Children & Family Servs., 957 So.2d 1203 (Fla. 3d DCA 2007); M.E. v. Fla. Dep’t of Children & Families, 919 So.2d 637, 644 (Fla. 3d DCA 2006). In determining whether the evidence is sufficient to support termination, the appellate court must determine whether DCF “establish[ed] that there is no reasonable basis to believe the parent will improve” as a result of its good faith efforts to assist the parent. See E.R. v. Dep’t of Children & Family Servs., 937 So.2d 1196, 1198-99 (Fla. 3d DCA 2006); accord L.A.G. v. Dep’t of Children & Family Servs., 963 So.2d 725, 727 (Fla. 3d DCA 2007) (reversing a termination of parental rights where the record was “replete with” evidence of the mother’s efforts to comply with the case plan).

In this case, the trial court record included substantial competent evidence regarding termination of D.M.’s parental rights. Expert witness testimony established D.M.’s difficulty in accepting, and even denial of, his role in the children’s abuse. The trial court also heard testimony indicating D.M. denied and rationalized the domestic violence issues in this case, and there was little positive development during the program. One expert testified that such denial would risk additional harm because of a failure to confront the problem that led to the harm. Thus, we reject D.M.’s argument that his non compliance with the plan was the Department’s fault, or that he would have been able to improve with further compliance. The trial court correctly concluded that substantial harm to the children, re-exposure to the harms that led to the dependency, would result if his parental rights were not terminated.

In contrast, there was not clear and convincing proof that B.A.’s parental rights should be terminated. The testimony below demonstrated B.A.’s consistent efforts at improvement, and that B.A. was on track for additional progress. Professionals testified as to B.A.’s efforts to improve, including specific testimony regarding positive interactions with the children. For example, the therapist supervising the children’s visits with their mother testified that B.A. engaged the children in educational games, avoided negative conversations, and brought them food. The GAL also testified the interactions he observed between B.A. and her daughters were good. In addition, the trial court heard testimony from an expert who opined that the recommended programs work, and require “a year or so” to be fully effective. It is undisputed B.A.’s therapy had not reached that- threshold at the time of trial, and there is no evidence B.A. willfully declined therapy. Thus, there is not substantial, competent evidence that B.A. failed materially to comply with the case plan, or that any non compliance with the case plan was due to B.A.

Lastly, we reject A.M.’s argument that the Guardian Ad Litem improperly participated in the proceedings on behalf of all three children. A.M. contends that the GAL’s recommendation regarding termination was contrary to A.M.’s express wishes. The statute does not make the child’s wishes the sole governing factor, and instead mandates consideration of “all relevant factors, including but not limited to” any express wishes of the child. See § 39.810, Fla. Stat. (2010). A.M. has not demonstrated that this mandate was not followed. Moreover, A.M. has not alleged any facts upon which we could conclude there was an actual conflict in representing the children, or that the trial court failed in its duty to examine at “each stage in the proceedings” whether a guardian should be appointed. See § 39.807(2)(b), Fla. Stat. (2010). Thus, on this record there is no reversible error resulting from the GAL’s performance of his duties in the trial court.

Affirmed in part; reversed in part.


text:
    Jose PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-353.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.

      Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before, RAMIREZ, SHEPHERD, and SUAREZ JJ.
   RAMIREZ, J.

Jose Perez appeals his conviction, after a trial, of possession of cocaine. Because the trial court erred in allowing prejudicial testimony and prosecutorial comments, we reverse.

Perez was stopped by the Florida Highway Patrol (FHP) while driving in Miami. The officer stopped Perez because his truck had a broken tail light, and there were problems with the truck’s registration. The officer sought and received consent to search the truck. He and his canine searched the vehicle for drugs. The canine eventually discovered, hidden within the truck, a box containing cocaine. Perez was arrested and charged by information with trafficking in cocaine.

The officer who stopped Perez was part of the contraband interdiction unit. He was patrolling the area as part of an ongoing narcotics investigation with a Drug Enforcement Administration (DEA) officer. The investigation included, pursuant to a tip received, surveillance of Perez.

The defense’s theory of the case was that Perez was arrested for a crime he did not intend to commit because he did not know the box the dog found contained cocaine. Perez’s defense emphasized that he answered questions and cooperated with the officers at the traffic stop, and that he waived his right to remain silent and consented to search. At trial, the defense did not contend Perez was wrongly targeted or entrapped. Rather, the defense’s theory of the case was that Perez did not know what was in the box that was under his seat.

Before trial, the defense moved, in li-mine, to exclude reference at trial to the ongoing investigation because none of the witnesses with knowledge of the investigation were made available for trial. Further, the defense contended any testimony regarding the investigation would be hearsay, and that the evidence was more prejudicial than probative.

Initially, the trial court indicated that “the only thing ... allowed ... is that [the officer] was there pursuant to an investigation.” Then, the trial court went on to state that the officer could testify that “the reason why he was following the car in the first place” was that he was there “pursuant to a narcotics investigation.”

In accord with the trial court’s ruling, the jury heard testimony from the officer that he was patrolling the area pursuant to an ongoing investigation. Defense counsel renewed the objection to the evidence, and also objected to any reference to the passenger’s affiliation with the DEA. The trial court, however, allowed the FHP officer to testify regarding the ongoing investigation. The trial court also permitted testimony regarding the presence of the DEA officer, but without reference to his affiliation with the DEA.

Additionally, in his closing, the prosecutor stated that the FHP officer “was following the defendant pursuant to a narcotics investigation.” Thus, the jury was reminded that the officer was following Perez pursuant to a narcotics investigation, not that the officer was in the area pursuant to an ongoing investigation. The defense renewed its objection, but the trial court again overruled the objection and permitted the prosecutor to continue his closing statement.

The jury convicted Perez of the lesser offense of possession of cocaine. Perez appeals his conviction, and contends the trial court deprived him of a fair trial by permitting the evidence regarding the ongoing investigation, and allowing the prosecutor to comment regarding the ongoing narcotics investigation.

Evidence that is immaterial to the offense with which the defendant is charged is not admissible against a defendant, and cannot be the basis for conviction. See State v. Baird, 572 So.2d 904, 907 (Fla.1990); State v. Ramos, 579 So.2d 360, 361 (Fla. 4th DCA 1991). “As a general rule, the investigation leading to the defendant’s arrest is not at issue in a criminal trial,” and thus evidence regarding the investigation is usually irrelevant. See Wilding v. State, 674 So.2d 114, 119 (Fla.1996) (concluding evidence that the defendant was investigated because of an anonymous tip advising the police to investigate him was irrelevant and prejudiced his light to a fair trial). Even relevant evidence that is prejudicial and of limited probative value should not be presented to the jury because “the need for the evidence is slight and the likelihood of misuse is great.” See Baird, 572 So.2d at 908. The erroneous admission of irrelevant prejudicial evidence requires correction through a new trial unless the appellate court is “satisfied beyond a reasonable doubt it did not contribute to the verdict.” Ousley v. State, 763 So.2d 1256, 1257 (Fla. 3d DCA 2000); see also Knowles v. State, 848 So.2d 1055, 1059 (Fla.2003) (explaining that “the question is whether there is a reasonable possibility that the error affected the verdict.”) (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)).

Inadmissible evidence or comments are not proper elements of the prosecution’s case because they distract the jury from the central issue of whether the defendant committed the offense charged beyond a reasonable doubt. See, e.g., Denmark v. State, 927 So.2d 1079, 1082 (Fla. 2d DCA 2006) (concluding revei'sible error occurred when “the prosecutor was able to elicit testimony that could serve only to unduly prejudice, mislead, or distract the jury.”). Consequently, repeated references to an ongoing investigation are highly prejudicial to the defendant’s case because they divert the jury’s focus from the offense charged to collateral acts. See Pulliam v. State, 446 So.2d 1172, 1173 (Fla. 2d DCA 1984); see also Wilding, 674 So.2d at 119 (concluding that the witness’s reference to the defendant being featured on America’s Most Wanted was irrelevant and highly prejudicial, and the error required a new trial). Evidence that suggests guilt by association is highly prejudicial. See E.M. v. State, 61 So.3d 1255, 1256-57 (Fla. 3d DCA 2011) (finding testimony by the arresting officer that the arrest occurred in a “hot area” known and patrolled for suspected narcotics transactions sufficient to warrant a new trial).

In this case, we cannot conclude beyond a reasonable doubt that the testimony and prosecutorial comments regarding the ongoing narcotics investigation did not influence the jury to convict Perez. The jury convicted Perez of the lesser offense of cocaine possession, and thus, it may have had doubts regarding Perez’s guilt. In the mind of a reasonable juror, those doubts may have been affected, to Perez’s detriment, by his capture as part of an ongoing narcotics investigation.

The trial court should have granted the defense’s motion in limine without qualification. Here, the officer testified he stopped Perez because Perez had a broken tail light and improper license plates on his vehicle. He also stated that Perez consented to the search of his truck. The search led to discovery of the contraband. Consequently, there was no need for the jury to know that Perez was the target of an ongoing narcotics investigation. The evidence regarding the narcotics investigation prejudiced the jury, and was irrelevant and unnecessary. As a result, because the trial court erred in allowing this evidence, we reverse and remand for a new trial.

Reversed and remanded.


author: SHEPHERD, J.

text:
    H.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1839.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

H.W. appeals an order denying his motion for judgment of dismissal and adjudicating him guilty of assault on a school administrator, contrary to sections 784.011 and 784.081 of the Florida Statutes (2009). We conclude the State failed to prove one of the three elements of the crime of assault and therefore reverse and remand the case with directions to the trial court to enter a judgment of dismissal. A brief summary of the facts of this case is necessary to explain our decision.

FACTS

This case arises out of an incident involving a juvenile, H.W., at Parkway Middle School on September 15, 2009. H.W., a student at the school, had been called to the office of Parkway Middle School administrative assistant Gladys Jones for disciplinary action for an earlier school infraction. Jones told H.W. his punishment for the infraction was a three-day suspension, whereupon H.W. became verbally abusive toward her. According to Jones, H.W. cursed at her, called her a “bit — ,” shouted “f— you,” and “lift[ed] his shirt and ... paced back and forth” in front of Jones’ desk.

H.W. left Jones’ office, but returned within the hour. Officer Hector Martinez, a school security officer, was located just outside Jones’ office. When H.W. entered Jones’ office for the second time, Jones was sitting behind her desk, speaking to another teacher, Latifa McGill. H.W. again cursed at Jones, paced back and forth, told her she was “foul” and that “something bad was going to happen to [her] ... that day.” H.W. told Jones he would make sure she got “put to sleep” and called her names. When asked if she was afraid, Jones testified, “Officer Martinez was there. In a way, I was afraid because ... H.W. is a violent individual.” Jones believed H.W “would have reached across my desk and hit me, and that’s why I called the officer.”

McGill testified H.W. was “very upset, irate.” “[H]e threatened Ms. Jones by saying she was foul, something bad was going to happen to her.” McGill did not believe Jones was fearful, only “disturbed.” McGill also thought H.W. would not be able to do anything to Jones because Officer Martinez was outside the office. McGill did not believe H.W. could hit Jones, because Jones was sitting at her desk and H.W. would have had to jump over the desk.

Officer Martinez testified he witnessed H.W. flailing his arms and making threatening remarks toward Ms. Jones. Officer Martinez heard H.W. tell Jones, “[Y]ou’re going to die today, bit — ; something is going to happen to you after school; you watch.” Officer Martinez intervened and placed H.W. in a separate room, after which H.W. stated, “that bit — is going to die today right after school; you watch.” Officer Martinez handcuffed H.W. and conducted his investigation.

DISCUSSION

H.W. was charged with assault on a specified official or employee, pursuant to sections 784.011(1) and 784.081(2). Section 784.011(1) of the Florida Statutes (2009) states:

An assault is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

(emphasis added). The statute requires proof of three elements: (1) an intentional, unlawful threat; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that the violence is imminent. See Benitez v. State, 901 So.2d 935, 937 (Fla. 4th DCA 2005).

Proof of the crime of assault requires not just proof of a threat, but also proof of some physical act directed toward the victim. See, e.g., Johnson v. State, 888 So.2d 691, 693 (Fla. 4th DCA 2004) (affirming conviction where the appellant pointed a gun at the victim and said, “F — , ni[ — ]er, I missed the first time, but I won’t miss this time”); K.E.H. v. State, 802 So.2d 395, 396 (Fla. 4th DCA 2001) (affirming conviction on facts that “[w]hen his mother persisted, appellant put his fist in his mother’s face and said, ‘Leave me alone you f-ing bitch. I’m going to punch you in the f — ing face’ ”). The deficiency here is that the record is devoid of evidence to show H.W. did any act to create a well-founded fear by Jones that violence was imminent. “A person’s mere intention to commit an assault is not enough; there must be some overt act sufficient to demonstrate a threat directed at the person placed in fear.” Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990); accord Perez v. Siegel, 857 So.2d 353, 355 (Fla. 3d DCA 2003) (“[AJlthough Perez did allegedly threaten to kill Siegel and her family during their face to face confrontation, Siegel never alleged nor proved that at the time Perez had the apparent ability to do so and committed any overt act that created a well-founded fear that violence against them was imminent.”).

Although there was sufficient evidence to support a finding by the trial court that H.W. made an intentional, unlawful threat, and even that Jones had a well-founded fear — see Pallas v. State, 636 So.2d 1358, 1361 (Fla. 3d DCA 1994) (“[I]t is settled that a “well-founded fear’ is measured by a reasonable person standard, not a subjective standard.”); L.R. v. State, 698 So.2d 915, 916 (Fla. 4th DCA 1997) (stating, “[wjhere the victim testifies, the victim’s subjective perception of fear, so long as it is determined to be well-founded, is sufficient to prove the element of fear,” and reversing conviction for assault where a third person stood between L.R., who had a knife, and victim, and where victim testified she did not believe L.R. actually would stab her) — H.W.’s words did not create a well-founded fear that he would do something to Jones at that time. See Titsch v. Buzin, 59 So.3d 265, 267 (Fla. 2d DCA 2011) (concluding there was no evidence Titsch “made an overt act indicating an ability to carry out the threat or that would otherwise justify a reasonable belief by Mr. Buzin that violence was imminent”); Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 4th DCA 2004) (concluding no assault where Gagnard threatened to kill Sticht and to “ ‘F’ him up” but where there was no evidence Gagnard made any overt acts indicating an ability to carry out the threats or justifying a belief in Sticht that violence was imminent); Butler v. State, 632 So.2d 684, 685 (Fla. 5th DCA 1994) (stating threat by Butler to girlfriend to physically harm her if she is around another male, “sets out a conditional threat to do injury at some unspecified future time based upon a possible eventuality, and this does not constitute an assault”).

H.W. threatened that something would happen “that day.” When asked if she was afraid, Jones testified, “Officer Martinez was there. In a way, I was afraid,” because “[h]e is a violent individual.” Jones did not raise her voice to shout for help, but instead calmly called for Officer Martinez who was “outside the door.” Jones’ “thought that [H.W.] would have reached across my desk and hit me,” and H.W.’s threat that something would happen “that day” are insufficient to show violence was imminent. (Emphasis added).

Reversed and remanded with directions to the trial court to enter an order granting the motion for judgment of dismissal.


author: GILLESPIE, KENNETH L., Associate Judge.

text:
    STATE of Florida, Appellant, v. Wilbert JOHNSON, Jr., Appellee.
    No. 4D10-4180.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   GILLESPIE, KENNETH L., Associate Judge.

The State of Florida appeals a downward departure sentence imposed by the trial court after a jury found Wilbert Johnson Jr. guilty for failing to properly register as a sex offender. While Johnson’s sentencing scoresheet resulted in a minimum guidelines sentence of 51 months of imprisonment, the trial court sentenced him to two years of imprisonment. The State argues on appeal that the downward departure, imposed pursuant to subsection 921.0026(2)(c), Florida Statutes (2008), was not justified under the facts of this ease. We agree with the State and reverse and remand for resentencing.

I. FACTS

Johnson was adjudicated guilty by the trial court after the jury found him guilty of failing to properly register as a sex offender as required under Florida law. In 2006, subsection 943.0435(14), Florida Statutes, required sex offenders to “report in person each year during the month of the sexual offender’s birthday and during the sixth month following the sexual offender’s birth month to the sheriffs office in the county in which he or she resides or is otherwise located to reregister.” (Emphasis added). However, in 2007, the Legislature amended the law to require sex offenders who had been convicted of certain, specified offenses to “reregister each year during the month of the sexual offender’s birthday and every third month thereafter.” § 943.0435(14)(b), Fla. Stat. (2007) (emphasis added). This change in the law apparently altered Johnson’s reporting requirements.

At the sentencing hearing, Johnson argued for the application of two mitigating factors pursuant to section 921.0026, Florida Statutes (2008). Only subsection 921.0026(2)(c) is relevant to this appeal. Specifically, Johnson argued that his capacity to understand the criminal nature of his conduct was substantially impaired due to the change in the law, of which he was not aware. Over the State’s objection that the factor did not apply, the trial court granted the downward departure.

II. ANALYSIS

A trial court’s decision to grant a downward departure is a two-step process. State v. Alonso, 31 So.3d 265, 266 (Fla. 4th DCA 2010). “First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it....” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999) (emphasis in original). Second, where the requirements of the first step are met, the trial court “must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.” Id. at 1068 (emphasis in original).

While the second step “is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion, the first step is “a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Id. at 1067-68. The defendant has the burden of proof to establish the facts that support a downward departure by a preponderance of the evidence. See id. at 1067; State v. Petringelo, 762 So.2d 965, 965 (Fla. 2d DCA 2000).

In analyzing the first step, we must determine whether the trial court could depart from the sentencing guidelines based on a valid legal ground and whether there was adequate factual support for that ground based on the specific facts of this case. As such, the issue revolves around whether Johnson’s lack of knowledge of the change in the registration law implicated subsection 921.0026(2)(c), which allows a trial court to depart when “[t]he capacity of the defendant to appreciate the criminal nature of the conduct ... was substantially impaired,” to the extent that it was a legally valid reason for a downward departure.

Based on subsection 921.0026(2)(c)’s plain language, we agree with the State that the trial court erred in applying the substantially-impaired-capacity mitigating factor. See Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005) (when a statute is clear and unambiguous, courts will not look behind the statute’s plain language or resort to rules of construction); Green v. State, 604 So.2d 471, 473 (Fla.1992) (“If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.” (citation omitted)).

Black’s Law Dictionary 220 (8th ed.2004) defines capacity as “[t]he mental ability to understand the nature and effect of one’s acts.” Knowledge is defined, however, as “[a]n awareness or understanding of a fact or circumstance; a state of mind in which a person has no substantial doubt about the existence of a fact.” Id. at 888. For section 921.0026(2)(c) to apply, it is not enough that a defendant simply not know that what he was doing was criminal or wrong; the defendant must have been unable to understand that what he was doing was criminal or wrong. Johnson’s claim was that he did not know of the change in the sex offender registration law, not that he did not understand it. Thus, the circumstance that serves as a factual predicate in this case for the application of subsection 921.0026(2)(c) is knowledge— not capacity. It therefore is not a valid legal ground upon which a downward sentence can be granted.

While the trial court’s compassion and legal rationale to justify its findings are honorable, they do not support a basis under 921.0026(2)(c) for the granting of a downward departure. Notably, justifying a 921.0026(2)(c) downward departure based on the facts provided this court would run counter to the maxim that ignorance of the law is no excuse for criminal conduct. See Roberts v. State, 26 Fla. 360, 7 So. 861, 862 (Fla.1890) (“Ignorance of law is no excuse for the commission of an offense against the law.”).

Accordingly, we hold that the trial court misapplied subsection 921.0026(2)(c). As such, Johnson’s sentence is hereby reversed and this case remanded for resen-tencing. The trial court judge shall impose a sentence pursuant to the guidelines, unless a different mitigating factor applies.

Reversed and Remanded

POLEN and CONNER, JJ., concur.

      . Instructive in this matter is State v. Fontaine, 955 So.2d 1248 (Fla. 4th DCA 2007). There, the defendant pleaded guilty to aggravated child abuse for beating his fiancée’s young son and moved for a downward departure. Id. at 1249. His fiancée testified at the evidentiary hearing "that his behavior changed after he had been in a serious accident and was given a substantial amount of drugs;” he was "very depressed.” Id. The defendant’s mother said much the same thing, adding "that the more medications he took, the angrier he got.” Id. The defendant also testified. He cited the accident, multiple surgeries, pain, overmedication, and depression as the reasons why he abused the child; "[mjoreover, he did not remember the entire incident.” Id. The trial court granted a downward departure because, among other reasons, the defendant’s capacity was substantially impaired at the time of the offense. Id. This court affirmed, holding that subsection 921.0026(2)(c) provided a valid basis for the downward departure. Id. at 1250. Although cases like Fontaine do not foreclose the possibility that capacity could apply to a situation such as Johnson's, they do suggest that subsection 921.0026(2)(c) is understood to involve mental capacity.


text:
    Ricardo Valora LEZAMA, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5649.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.
    Ricardo Valora Lezama, pro se.
   PER CURIAM.

Ricardo Valora Lezama appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed; question certified.

NORTHCUTT, CASANUEVA, and KELLY, JJ., Concur.


author: VILLANTI, Judge.

text:
    Todd Kevin NORWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2522.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.

      Todd Kevin Norwood, pro se.
   VILLANTI, Judge.

Todd Kevin Norwood appeals the post-conviction court’s order vacating all of the orders it entered while a motion for rehearing was pending in this court. We affirm but remand with directions.

Norwood filed a motion for postconviction relief in November 2006 raising twelve grounds for relief. In August 2007, the postconviction court summarily denied nine of the claims and ordered an eviden-tiary hearing on the remaining three claims. In May 2008, the postconviction court denied the remaining claims after an evidentiary hearing. Norwood appealed this final order.

On May 7, 2010, this court issued an opinion reversing the summary denial of claim one of Norwood’s motion, which alleged that counsel was ineffective for failing to allege a violation of his right to speedy trial, and we remanded for the postconviction court to give Norwood leave to amend this claim pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). Both Norwood and the State filed motions for rehearing. This court denied Norwood’s motion for rehearing. Mandate was then inadvertently issued on August 18, 2010, even though the State’s motion for rehearing remained pending.

Based on the issuance of our mandate, the postconviction court assumed it had jurisdiction, and it entered several orders relating to claim one of Norwood’s motion. Ultimately, it scheduled an evidentiary hearing on claim one and appointed counsel for Norwood. However, before that hearing could be held in the postconviction court, this court granted the State’s motion for rehearing in the still-pending appeal, withdrew the May 7, 2010, opinion, and affirmed the postconviction court’s original denial of claim one. Mandate issued on April 12, 2011.

After this “second” mandate issued, the postconviction court entered an order vacating all of the orders it had entered as a result of the mandate erroneously issued on August 18, 2010. This was proper because the postconviction court lacked jurisdiction to consider claim one of Norwood’s motion while rehearing of that same claim was pending in this court. Cf. Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010) (holding that the postconviction court has no jurisdiction to consider a motion for postconviction relief while an earlier disposition of that motion is pending in this court).

However, in reliance on the postconviction court’s orders entered after this court’s premature issuance of mandate, Norwood has now amended claim one to be facially sufficient. Therefore, under the unique circumstances of this case, on remand the postconviction court should consider the merits of claim one of Norwood’s motion.

Affirmed.

NORTHCUTT and WALLACE, JJ., Concur.


text:
    Myron INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4630.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

TAYLOR, DAMOORGIAN and GERBER, JJ., concur.


text:
    ROYAL CRANE, LLC d/b/a Hunter Crane and James Long, Appellants, v. Daniel BRANDON, Appellee.
    No. 4D11-787.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Rehearing Denied March 1, 2012.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellants.
    William J. McCabe, Longwood, for ap-pellee.
   PER CURIAM.

Affirmed. See General Crane, Inc. v. McNeal, 744 So.2d 1062 (Fla. 4th DCA 1999).

POLEN, TAYLOR and HAZOURI, JJ., concur.


text:
    Mark A. REYES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3295.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Mark A. Reyes, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, LAGOA and EMAS, JJ.
   PER CURIAM.

The trial court’s order denying, on its merits, a timely-filed motion to reduce or modify sentence pursuant to Florida Rule of Criminal Procedure 3.800(c) is not ap-pealable. Accordingly, we dismiss this appeal for lack of jurisdiction. See Diaz v. State, 931 So.2d 1002 (Fla. 3d DCA 2006); Smith v. State, 902 So.2d 293 (Fla. 3d DCA 2005).


text:
    Cedric BUSH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3255.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Cedric Bush, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

The defendant’s motion under Florida Rule of Criminal Procedure 3.800 was denied by the trial court. Because the defendant is challenging his conviction rather than his sentence, we treat his motion as a motion under Florida Rule of Criminal Procedure 3.850. See, e.g., Rivas v. State, 43 So.3d 154, 156 (Fla. 3d DCA 2010). The motion, pursuant to this Court’s precedent in Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011), was legally insufficient on its face and thus properly denied.

Affirmed.


text:
    Ramon Eduardo RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3074.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Ramon Eduardo Ramos, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Harold McINTYRE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2951.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Harold McIntyre, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011), and cases cited therein.


text:
    K.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem, Appellees.
    No. 3D11-2539.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Thomas J. Butler, Miami Beach, for appellant.
    Karla Perkins, Miami, for appellee Department of Children and Families; Hillary S. Kambour for appellee Guardian ad Litem.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. §§ 39.806(l)(c), (j), Fla. Stat. (2011); Padgett v. Dept. of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991).


text:
    Rodolfo TORAL, Appellant, v. Maria Elena TORAL, Appellee.
    No. 3D11-109.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.

      Jorge L. Gonzalez, Miami, for appellant.
    Marcelo M. Agudo, Miami, for appellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

We affirm the trial court’s final judgment of dissolution which determined that certain funds were marital property. Here, the husband did not only commingle the funds, but he also agreed to transfer the entire account to the wife’s mother to earn a higher interest rate. See Hay v. Hay, 944 So.2d 1043, 1046 (Fla. 4th DCA 2006) (“The trial court is the judge of the facts and the credibility of the witnesses. We cannot conclude that the trial court abused its discretion in determining that the husband failed to carry his burden of proving no gift was intended.” (internal citations omitted)).

Affirmed.


text:
    M.K., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1573.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


author: MORRIS, Judge.

text:
    Maszeline D. MELTON, Appellant, v. James K. MELTON, Appellee.
    No. 2D10-4995.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 2012.

      A. Ann Arledge of Bay Area Legal Service, Inc., Tampa, for Appellant.
    Perry G. Gruman of Perry G. Gruman, P.A., Tampa, for Appellee.
   MORRIS, Judge.

Maszeline D. Melton, the wife, appeals the portion of the final judgment of dissolution of marriage between herself and the husband, James K. Melton, that awarded her permanent periodic alimony. Because the trial court failed to include the husband’s voluntary contributions to a charity bond, savings bonds, and retirement account in the husband’s net income figures and because the amount awarded would leave the wife substantially unable to meet her basic needs, we reverse and remand the permanent periodic alimony award. We do not address the wife’s remaining arguments, and we affirm all other portions of the final judgment without comment.

When determining whether an award of permanent periodic alimony is appropriate, a trial court must balance the needs of one spouse with the ability of the other spouse to provide the necessary funds. See Cleary v. Cleary, 872 So.2d 299, 304 (Fla. 2d DCA 2004) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980)). In ordering such an award, a trial court must be careful that neither spouse passes from prosperity to misfortune or from misfortune to prosperity. See id. Determinations of a paying spouse’s ability to pay must be based on “all relevant economic factors” including “[a]ll sources of income,” see § 61.08(2)(g), Fla. Stat. (2009), as well as “ ‘net worth, past earnings, and the value of the parties’ capital assets,’ ” Vega v. Vega, 877 So.2d 882, 883 (Fla. 3d DCA 2004) (quoting Canakaris, 382 So.2d at 1202). Additionally, trial courts must factor in the paying spouse’s voluntary contributions to investments, savings, and retirement plans in making the “ability-to-pay alimony calculation.” Geoghegan v. Geoghegan, 969 So.2d 482, 486 (Fla. 5th DCA 2007); see also Martinez v. Abinader, 37 So.3d 944, 947 (Fla. 2d DCA 2010) (reversing in part because trial court failed to address husband’s voluntary contributions to AARP 401(k) plan or the fact that husband was making payments on investment property that he purchased after parties’ separation). Trial courts may also consider “any other factor necessary to do equity and justice between the parties.” § 61.08(2). A “court’s determination of a party’s net income must be supported by competent, substantial evidence.” McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008).

Here, there was conflicting financial information for the husband in the record. While the husband’s financial affidavit reflected that his net monthly income was just over $5300, his pay stubs reflected a much smaller figure of $2289. The husband testified that the lower monthly net income figure was due to a change in the amount he was contributing towards a charity bond as well as a change in his tax status which resulted in larger deductions for taxes and his thrift savings plan.

On cross-examination, the husband agreed with the wife’s counsel’s assertion that the deductions on his pay stubs reflected “voluntary deductions for the bonds and [tjhrift [sjavings and retirement and those things that you choose to invest your money in.” The husband also admitted that his net income “would be substantially more” if he did not make the voluntary contributions.

Although the categories for various voluntary contributions are not entirely clear in the record, it appears that the husband is contributing $44.75 biweekly for savings bonds, $100 biweekly for the charity bond, and $349.79 biweekly for the thrift savings plan. These contributions amount to $989.08 monthly.

In rendering the alimony award, the trial court cited the husband’s pay stubs as the basis for its determination that the husband made approximately $2671 monthly from his job with the United States Postal Service. The trial court also determined that the husband received an additional $807 per month in military retirement benefits. The trial court failed to mention any of the husband’s voluntary contributions. The trial court determined that the husband’s monthly expenses amounted to $2152, a figure which the wife does not dispute. Thus, based on the trial court’s figures, the husband had a surplus of $1326 monthly.

However, if the trial court had properly accounted for the husband’s voluntary contributions of $989.08, the husband’s monthly income, including his military retirement, would amount to approximately $4467.08. After deducting the husband’s expenses of $2152, he would be left with a monthly surplus of $2315.08. Consequently, because the trial court failed to account for the husband’s voluntary contributions, the determination of the husband’s net monthly income was not supported by competent, substantial evidence. See Martinez, 37 So.3d at 947.

Furthermore, the trial court’s alimony award in this case left the wife substantially unable to meet her basic needs. See McCants, 984 So.2d at 683 (noting that because trial court would be required to reconsider alimony award on remand, it should also consider wife’s need because “[cjonsidering the circumstances ... a permanent alimony award of only $400 per month would leave the [w]ife substantially unable to meet her basic needs”). The wife was awarded $750 a month in permanent periodic alimony. That figure added to her imputed gross monthly income of $1500 and to the approximate $360 a month she received as her portion of the husband’s military retirement resulted in a total of $2610 monthly. But the wife’s financial affidavit reflected that her monthly expenses are nearly $3600, which the husband has not disputed. Thus, the alimony award leaves the wife with nearly a $1000 monthly deficit.

Under these circumstances, the trial court abused its discretion in setting the amount of permanent periodic alimony. We reverse and remand in part for the trial court to reconsider the award with directions to the trial court to factor in the husband’s voluntary contributions and to consider whether the award would leave the wife substantially unable to meet her basic needs.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND and VILLANTI, JJ„ Concur.

      . The court determined that the husband received two additional paychecks per year which the court divided over a twelve-month period, resulting in $382 per month in addition to the net monthly income figure of $2289.

      . We note that the written order reflects a surplus of $1329.


text:
    J.C., A Child, Petitioner, v. STATE of Florida, Respondent.
    Nos. 5D11-3970, 5D11-3971.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2012.
    Robert Wesley, Public Defender, Orlando, and Eileen Forrester, Chief Assistant Public Defender, Orlando, and Ronnie Syme, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal in case numbers 2010-CJ-1595-A-0 and 2011-CJ-2320-A-0 in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Joseph T. RILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3692.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2012.
    Joseph T. Riley, Wewhitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying petitioner’s Motion to Vacate Judgment and Sentence in case number 2010-CF-1253, in the Circuit Court in and for Osceola County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, TORPY and JACOBUS, JJ., concur.


text:
    Avakian H. NERSES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2909.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2012.
    Avakian H. Nerses, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the denial of Appellant’s Florida Rule of Criminal Procedure rule 3.800 jail credit challenge. Our affirmance, however, does not preclude Appellant from filing a subsequent petition alleging, if he can in good faith, that the trial court improperly deducted 202 days of credit because it was awarded pursuant to a negotiated plea; or in the alternative, that he is entitled to such credit because he was released on his Duval County charges but was held on the Brevard County detainer. See Bonilla v. State, 884 So.2d 1072 (Fla. 5th DCA 2004).

AFFIRMED and REMANDED.

GRIFFIN, TORPY and COHEN, JJ., concur.


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    Trametrich JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0214.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2012.
    Trametrich Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, ROBERTS, and RAY, JJ., concur.