author: WHATLEY, Judge.

text:
    Alfreda ELLSWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-649.
    District Court of Appeal of Florida, Second District.
    June 8, 2012.

      James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Alfreda Ellsworth appeals her judgment and sentence for failure to redeliver hired or leased personal property, arguing that the trial court erred in denying her motion to dismiss. Ellsworth asserted in her motion that her lease agreement did not contain the language necessary to maintain a prosecution pursuant to section 812.155(6), Florida Statutes (2009). We agree with Ellsworth that her motion to dismiss should have been granted and we reverse.

Section 812.155(6) provides as follows:

NOTICE REQUIRED. — As a prerequisite to prosecution under this section, the following statement must be contained in the agreement under which the owner or person lawfully possessing the property or equipment has relinquished its custody, or in an addendum to that agreement, and the statement must be initialed by the person hiring or leasing the rental property or equipment:
Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for damage to the property or equipment) are evidence of abandonment or refusal to redeliver the property, punishable in accordance with section 812.155, Florida Statutes.

The language in the rental agreement which Ellsworth signed differs slightly from the statute. The agreement provides as follows: “Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for the damage to the property or equipment) are prima facie evidence of intent to defraud, punishable in accordance with section 812.155, Florida Statutes.” (Emphasis added.) We note that section 812.155(6) was amended in 2006, but the rental agreement tracks the language required by the previous version of the statute. Ch. 2006-51, § 3, at 884-85, Laws of Fla.

In 2006, the section of the statute defining the crime of failure to redeliver hired or leased personal property was similarly amended to replace the language pertaining to “intent to defraud” and now states,

FAILURE TO REDELIVER HIRED OR LEASED PERSONAL PROPERTY. — Whoever, after hiring or leasing any personal property or equipment under an agreement to redeliver the same to the person letting such personal property or equipment or his or her agent at the termination of the period for which it was let, shall, without the consent of such person or persons knowingly abandon or refuse to redeliver the personal property or equipment as agreed, shall, upon conviction, be guilty of a misdemeanor of the second degree, ... unless the value of the personal property or equipment is of a value of $300 or more; in that event the violation constitutes a felony of the third degree....

§ 812.155(8) (emphasis added).

Section 812.155(4)(b) creates a permissive inference that failure to redeliver the property is evidence of abandonment or refusal to redeliver such property. See State v. Rygwelski, 899 So.2d 498, 503-04 (Fla. 2d DCA 2005) (holding that section 812.155(4)(b) creates a permissive inference, not a mandatory presumption). Section 812.155(4)(b) specifically provides that the “failure to redeliver the property or equipment within 5 days after receipt of, or within 5 days after return receipt from, the certified mailing of the demand for return is evidence of abandonment or refusal to redeliver the property.” The language required to be included in the rental agreement by subsection (6) informs the renter that the failure to redeliver the property will create this permissive inference.

In the present case, the trial court denied Ellsworth’s motion to dismiss based on its finding that the rental agreement substantially complied with section 812.155(6). On appeal, Ellsworth contends that substantial compliance with the statute was not sufficient. We agree. Criminal statutes generally “must be strictly construed according to their letter.” State v. Byars, 823 So.2d 740, 742 (Fla.2002) (quoting Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991)). “The doctrine that mandates construing statutes in favor of the accused also requires that courts give effect to the language and intent of the Legislature in its interpretations of statutes.” 823 So.2d at 742.

When analyzing a statute, courts look to legislative intent and to determine such intent, the language and plain meaning of the statute must be examined first. Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009). When the statutory language is clear, courts may not explore legislative history nor apply canons of statutory construction. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).

We conclude that the language and plain meaning of section 812.155(6) is clear. The first sentence unambiguously states that as “[a]s a prerequisite to prosecution,” the agreement “must” contain the required language. Such required language informs the consumer that a permissive inference will arise from her failure to return the property, i.e., that such failure is “evidence of abandonment or refusal to redeliver the property,” which is an element of the offense. See § 812.155(3). The agreement at issue in the present case incorrectly states that the failure to return the property is “prima facie evidence of intent to defraud”; however, as noted above intent to defraud is no longer an element of the crime.

In Ferlita v. State, 380 So.2d 1118, 1119 (Fla. 2d DCA 1980), this court examined whether the clerk of court could enter a judgment pursuant to section 903.27, Florida Statutes (1973), when the State failed to file a certified copy of an order of forfeiture as required by statute, but instead only presented a memorandum that the bail had been ordered forfeited. In Ferli-ta, the trial court concluded that the procedure used by the State and the clerk constituted “substantial compliance” with the statutory requirement. Id. This court reversed, holding as follows:

Where strict compliance is required, the statute must be followed exactly in order to give the court jurisdiction to enter a judgment, and if there is a failure to do so, the purported judgment is void. Substantial compliance is normally acceptable only where strict compliance has been rendered impossible by some cause for which the party charged with strict compliance is not responsible, such as the conduct of the other party.

Id. (citations omitted).

In Kinder v. State, 779 So.2d 512, 514 (Fla. 2d DCA 2000), this court noted that when a statute uses a term like “shall,” it is “generally mandatory, although it may be merely directory under appropriate circumstances.” This court held that the language will be “interpreted to be mandatory where it refers to some action preceding the possible deprivation of a substantive right,” but it will be considered to be directory if it relates to an “immaterial matter in which compliance is a matter of convenience.” Id. In the present case, the language refers to an action preceding the possible deprivation of a substantive right: “As a prerequisite to prosecution under this section, the following statement must be contained in the agreement....” § 812.155(6). Therefore, because the statute is mandatory and not merely directory, the ¡trial court erred in ruling that only substantial compliance with the statute was required.

Accordingly, we reverse Ellsworth’s convictions and sentences and remand with directions that the trial court discharge Ellsworth.

DAVIS and WALLACE, JJ., Concur.

      . Judicial interpretation of this statute is a pure question of law and we must therefore use a de novo standard of review. See Johnson v. State, 78 So.3d 1305, 1310 (Fla.2012).

      . Although we believe that the legislative intent is clear from the language of the statute, we would note that the House of Representatives Committee on Crime and Punishment Bill Analysis for HB 1317 (May 13, 1998) states that ”[i]n order for a prosecutor to use the presumptions permitted by the bill the person renting or leasing the property must initial the following statement in the contract. ...”

      . If the requirements of section 812.155 have not been met, a person who fails to return rental property may still be charged with theft under section 812.014, Florida Statutes (2009), but the State would not be entitled to use the presumptions provided in section 812.155.


source: Caselaw Access Project

author: RAY, J.

license: Public Domain

text:
    Tereatha ROBINSON, Appellant, v. DEPARTMENT OF HEALTH, State of Florida, Appellee.
    No. 1D11-4139.
    District Court of Appeal of Florida, First District.
    June 8, 2012.

      Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellant.
    Linda Bond Edwards and Matthew J. Carson of Rumberger, Kirk & Caldwell, Tallahassee, for Appellee.
   RAY, J.

Tereatha Robinson, Appellant, appeals an adverse final summary judgment of her civil complaint under the Whistle-blower’s Act, sections 112.3187-.31895, Florida Statutes (2008). The final summary judgment was premised on Appellant’s failure to exhaust the available administrative remedies by appealing the dismissal of her initial whistle-blower complaint by the Florida Commission on Human Relations (FCHR). Appellant argues that she was not required to appeal the dismissal and that, even if a complainant is ordinarily required to appeal such a dismissal, it was not necessary for her to do so because FCHR issued the dismissal after the time frame within which FCHR was required to act. Contrary to Appellant’s arguments, the circuit court correctly concluded that Appellant’s failure to appeal the dismissal foreclosed her right to file suit in circuit court under the Whistle-blower’s Act.

Appellant’s claim arose out of the termination of her employment with the Department of Health (DOH). After the termination of her employment, Appellant filed a whistle-blower complaint with FCHR, which dismissed the complaint as untimely 188 days later. The notice of dismissal advised Appellant of her right to seek review of FCHR’s decision in this Court within thirty days. Appellant did not appeal. Instead, 107 days after the dismissal, she filed a whistle-blower complaint against DOH in circuit court. DOH moved for summary judgment on the ground that Appellant failed to exhaust her administrative remedies. The circuit court granted the motion and entered final judgment in favor of DOH.

A court may grant summary judgment when “there is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law.” Lomack v. Mowrey, 14 So.3d 1090, 1091 (Fla. 1st DCA 2009). The determination that this standard has been met is subject to de novo review. Smith v. New Hampshire Indem. Co., 60 So.Sd 429, 431 (Fla. 1st DCA 2011).

To maintain a civil action under the Whistle-blower’s Act, a public employee must first exhaust the administrative remedies provided therein. City of Miami v. Del Rio, 723 So.2d 299, 300 (Fla, 3d DCA 1998). As a general rule, exhaustion of administrative remedies includes pursuing an appeal from an administrative ruling where a method of appeal is available. Fla. High School Athletic Ass’n v. Melbourne Cent. Catholic High School, 867 So.2d 1281, 1288 (Fla. 5th DCA 2004); see State, Dep’t of Transp. v. Hendry Corp., 500 So.2d 218, 221 (Fla. 1st DCA 1986); Sawyer v. Wainwright, 422 So.2d 1027, 1028 (Fla. 1st DCA 1982).

The Whistle-blower’s Act provides a statutory cause of action for employees of state agencies, among others, who face adverse personnel action as a result of certain protected activities. §§ 112.3187(8)(a); 112.31895(4)(a). Employees of state agencies may seek the relief provided under the Act through either circuit court or the Public Employees Relations Commission (PERC). §§ 112.3187(8)(a); 112.31895(4)(a). However, the Act provides certain prerequisites to the filing of an action in either circuit court or with PERC. §§ 112.3187; 112.31895. To initiate an action under the Whistle-blower’s Act, a state agency employee must file an administrative complaint with either FCHR or the Office of the Governor within sixty days of the action that is the subject of the complaint. §§ 112.3187(8)(a), 112.31895(l)(a). When a complaint alleging a violation of the Whistle-blower’s Act is timely filed with FCHR, FCHR is required to investigate the complaint and, within ninety days, issue a fact-finding report. § 112.31895(2)(c). If FCHR is unable to conciliate the complaint within sixty days of the issuance of the fact-finding report, it is required to terminate its investigation and notify the complainant and the agency head that the investigation has been terminated. § 112.31895(3)(d). Once a complainant receives a notice of termination of investigation, he or she may elect either to file a complaint with PERC within sixty days or to file a civil action within 180 days. §§ 112.3187, 112.31895(4)(a). If FCHR issues a final order, rather than a notice of termination of investigation, the final order is subject to judicial review under section 120.68, Florida Statutes, as provided in section 112.31895(4)(b).

As Appellant acknowledged below, Florida Administrative Code Rule 60Y-5.006(3) provides that FCHR must dismiss a complaint if it is not timely filed with FCHR. However, the existence of this rule does not end our analysis because administrative agencies have no power except that which is provided by statute. See Grove Isle, Ltd. v. State Dep’t of Envtl. Reg., 454 So.2d 571, 573 (Fla. 1st DCA 1984). While the Whistle-blower Act does not contain a provision expressly authorizing FCHR to dismiss complaints it deems untimely filed, an agency has the power to take actions that are “necessarily or reasonably incident to the powers expressly granted” in a statute. Hall v. Career Sen. Comm’n, 478 So.2d 1111, 1112 (Fla. 1st DCA 1985). Here, the relevant statute requires the agency to review and investigate complaints that are filed within sixty days of personnel action that is prohibited under the Whistle-blower’s Act. § 112.31895(l)(a). Dismissal of a complaint FCHR believes to be untimely is a power necessarily incident to the power to review timely complaints. Moreover, section 112.31895(4)(b) reveals that the Legislature contemplated the entry of final orders by FCHR under the authority granted in the Whistle-blower’s Act. In consideration of the statutory deadline and the power of FCHR to issue final orders, we hold that FCHR has the authority to dismiss a complaint as untimely. Relief from a final order of dismissal may be obtained only through appellate review under section 120.68.

We reject Appellant’s argument that FCHR’s failure to act within the 150 days FCHR is granted to conciliate a complaint excused her of the obligation to exhaust her administrative remedies by appealing the dismissal. To support this argument, Appellant relies on Woodham v. Blue Cross and Blue Shield of Florida, Inc., 829 So.2d 891 (Fla.2002). Woodham involved FCHR’s handling of a claim filed under the Florida Civil Rights Act, sections 760.01-.il, Florida Statutes (1999). 829 So.2d at 893. • The Florida Civil Rights Act is similar to the Whistle-blower’s Act in that it requires the filing of a complaint with FCHR as a prerequisite to the filing of a civil suit asserting a statutory cause of action. See § 760.11(1), Fla. Stat. (2009). Unless the complaint is properly referred to another agency, FCHR must determine within 180 days whether “there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992.” § 760.11(2). If FCHR determines there is reasonable cause to believe that a violation of that act has occurred, the aggrieved person may either file a civil suit or request an administrative hearing. § 760.11(4). If FCHR determines there is no reasonable cause to believe a violation of the act has occurred, it is required to dismiss the complaint. § 760.11(7). The Florida Civil Rights Act provides a remedy for a failure on FCHR’s part “to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint.” § 760.11(8). In that event, the “aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause.” Id.

In pertinent part, the Woodham decision concerned the effect of FCHR’s hypothetical issuance of a determination of “no reasonable cause” beyond the 180-day deadline. 829 So.2d at 897-99. The Wood-ham court stated that if FCHR had issued a “no reasonable cause” determination after the 180-day window but before the complainant filed her civil suit, the determination would have had no effect on the claimant’s rights, as the statute plainly permitted the claimant to proceed to circuit court once 180 days passed without a determination from FCHR. Id.'

Appellant argues that this Court should extend the Woodham principle to the instant case due to the similarities between the two acts. She claims such a result is necessary to prevent FCHR from cutting off the rights of aggrieved employees by simply failing to act. However, neither Woodham nor the Whistle-blower’s Act provides authority for allowing a person to bring a whistle-blower action in circuit court when FCHR fails to act on the complaint in a timely fashion. Unlike the Florida Civil Rights Act, the Whistle-blower’s Act contains no provision allowing a complainant to bypass the administrative process due to a delay by FCHR. Rather than supporting Appellant’s position, Wood,ham and the Florida Civil Rights Act illustrate why the trial court’s decision was correct. If the Legislature had intended to allow whistle-blower complainants to proceed to circuit court due to a delay by FCHR, it would have included language in the Whistle-blower’s Act similar to that which it provided in the Florida Civil Rights Act. The Legislature’s failure to do so indicates that it did not intend to provide this independent avenue for relief.

While we are troubled by FCHR’s extraordinary delay in deeming Appellant’s complaint untimely, we are not at liberty to judicially engraft into the Act an avenue for Appellant to pursue her whistle-blower claim other than those provided under the Act. See art. II, § 3, Fla. Const, (reciting separation of powers doctrine); Seagrave v. State, 802 So.2d 281, 287 (Fla.2001) (recognizing that courts may not add words to statutes). Because Appellant failed to appeal the dismissal, she did not exhaust her administrative remedies. As a result, the circuit court correctly ruled that her claim under the Whistle-blower’s Act is barred.

AFFIRMED.

DAVIS and THOMAS, JJ., concur.


author: PER CURIAM.

text:
    Blake Alexander WARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1853.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The appellant, Blake Alexander Ward, was convicted of attempted second degree murder, and this court affirmed the judgment and sentence associated with that case. See Ward v. State, 17 So.3d 1243 (Fla. 5th DCA 2009). He now appeals the summary denial of the first two grounds of his amended rule 3.850 motion alleging ineffective assistance of counsel. Because ground two, which deals with the potential witness, Ms. Canty, is not facially invalid and is not conclusively refuted by the record, we reverse and remand for an eviden-tiary hearing to allow the trial court to consider ground two of Mr. Ward’s amended motion. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, MONACO and LAWSON, JJ., concur.


text:
    Luis A. RIOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1955.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 188 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011)-. The mandate will, be withheld pending final disposition of Adkins.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    Steven T. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2518.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Steven T. Johnson appeals his judgment and sentence for sale of methamphetamine and hydrocodone. Finding no error, we affirm. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition in Adkins.

AFFIRMED.

GRIFFIN, EVANDER and COHEN, J.J., concur.


text:
    Courtney ROCHOWIAK, Doyle Hughes, Janell Helgeson, Goldie Vezina, Barbara Alonso, Matthew Kesser, Asia Bruegger, James Williamson, Eugene Copeland, Monique Adams, Calvin Corbett, Willie Lofton, Amanda Zenaty, Nichole Headley, Jewon Gilley, Phillip Angle, Claudia Beveritt, Brennan Vorholt, Santana Daniels, Pedro Feliciano, Robert Berger, Jeanette Burgess, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-3061, 5D11-3072, 5D11-3277, 5D11-3279, 5D11-3373, 5D11-3374, 5D11-3378, 5D11-3381, 5D11-3592, 5D11-3593, 5D11-3594, 5D11-3596, 5D11-3597, 5D11-3598, 5D11-3599, 5D11-3613, 5D11-3705, 5D11-3706, 5D11-3707, 5D11-3708, 5D11-3709, 5D11-3710.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in each of these consolidated cases is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandates will be withheld pending final disposition of Adkins.

ORFINGER, C.J., LAWSON and JACOBUS, JJ„ concur.


text:
    Erin R. BORAK, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3180.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    Madeline D. CLEMONS, Tyrone Jones, Robin Smith, Cosby Daniels, Jerid Hill, Heather Deeb, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-3388, 5D11-3475, 5D11-3476, 5D11-3477, 5D11-3877, 5D11-3959, 5D11-3961, 5D11-3974.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

GRIFFIN, SAWAYA, and PALMER, JJ., concur.


text:
    Frank T. GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3513.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

SAWAYA, LAWSON and EVANDER, JJ., concur.


text:
    Edward J. DALEY, Samuel Saunders, Travis Vick, Robyn Selkowitz, Delroy Peterkin, Johnny Green, Wendy Fisher, James Dixon, Nikita Conner, Jerry Jackson, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-3860, 5D11-4058, 5D11-4059, 5D11-4060, 5D11-4061, 5D11-4062, 5D11-4063, 5D11-4064, 5D11-4065, 5D11-4205.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

PALMER, MONACO and JACOBUS, JJ., concur.


text:
    Marissa Latoria S. SPEARMON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3924.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adlans.

GRIFFIN, SAWAYA, and PALMER, JJ., concur.


text:
    Frank ROBERTS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1408.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    Frank Roberts, Jasper, pro se.
    Pamela J. 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 motion to vacate, set aside, or correct judgment and sentence filed January 24, 2012, in Case No. 05-2006-CF-14879-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, LAWSON and COHEN, JJ., concur.


text:
    Eric Bernard MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1538.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    Eric Bernard Martin, Bonifay, 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 the motion for postconviction relief in Case no. 05-2009-CF-51838-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, MONACO, JACOBUS, JJ., concur.


author: GRIFFIN, J.

text:
    Steve H. BRONSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1813.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    Robert Wesley, Public Defender, and Laura J. Klossner, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

Petitioner, Steve H. Bronson [“Bronson”], a sixty-four year-old convicted felon, was arrested in 2010 for the 1979 murder of Norma Page. Prior to his arrest, Bronson was living in a nursing home. Bronson suffers from a constellation of health issues, including significant left-side paralysis and cognitive deficiencies resulting from one or more strokes in 2003. Since his arrest, Bronson was found incompetent to proceed in his criminal case by multiple mental health professionals, who opined that his condition will become progressively worse, and that there is little or no probability that his competency will be restored in the future. He was adjudged incompetent to proceed in his criminal case in June 2011.

The State thereafter moved to civilly commit Bronson to the Department of Children and Families [“DCF”] pursuant to section 394.467, Florida Statutes, and the trial court ordered his involuntary commitment to DCF’s custody. DCF sought certiorari relief in this Court, asserting that the trial court failed to follow the required statutory procedures. This Court’s recently issued opinion quashed the trial court’s order, concluding that the trial court did not follow the procedural requirements set forth in Section 394.467 to determine if Bronson met the criteria for involuntary commitment. See Dep’t of Children & Families v. Bronson, 79 So.3d 199, 202 (Fla. 5th DCA 2012).

Following the issuance of this Court’s mandate in February 2012, Bronson has remained in custody. According to the parties, the State has not re-initiated involuntary commitment. Bronson is currently detained in Osceola County’s jail and he has petitioned for a writ of habeas corpus, seeking immediate release from custody and dismissal of charges against him.

According to the medical evidence, there is little chance that Petitioner will be restored to competency due to his cognitive deficits resulting from his stroke; therefore, he must be civilly committed or released from custody. See Roddenberry v. State, 898 So.2d 1070, 1073 (Fla. 5th DCA 2005); see also Oren v. Judd, 940 So.2d 1271 (Fla. 2d DCA 2006); Mosher v. State, 876 So.2d 1230, 1230 (Fla. 1st DCA 2004) (State must institute civil commitment proceedings or release mentally ill defendant when evidence showed no substantial probability that mentally ill defendant will regain competency.)

In its response to the habeas corpus petition, the State does not contend that Bronson is being legally detained. Therefore, we are bound to grant Bronson’s petition for writ of habeas corpus, and direct the trial court to release Bronson in accordance with the law. This decision is without prejudice to the State instituting civil commitment proceedings, should it conclude it has grounds to do so.

PETITION GRANTED.

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


text:
    Leo TOBY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1965.
    District Court of Appeal of Florida, First District.
    June 8, 2012.
    Leo Toby, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied. This disposition is without prejudice to petitioner’s right to seek review of the order denying motion to withdraw plea on appeal from judgment and sentence.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    Seth R. STARLING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5499.
    District Court of Appeal of Florida, First District.
    June 8, 2012.

      Seth R. Starling, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Seth Ryan Starling is hereby afforded belated appeal of judgment and sentence imposed in Su-wannee County case number 08-352-CF. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

The circuit court is directed to appoint counsel to represent appellant in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    Antwan J. TYLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4345.
    District Court of Appeal of Florida, First District.
    June 8, 2012.
    Antwan J. Tyler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Antwan J. Tyler is hereby afforded a belated appeal from judgment and sentence in Leon County case number 2008-CF-1494. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

The circuit court is directed to appoint counsel to represent appellant in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    Kenneth T. KAUFMAN, Deborah J. Kaufman and Jeremey Kaufman, Appellants, v. IRONHORSE PROPERTY OWNERS ASSOCIATION, INC., a non-profit Florida corporation, Appellee.
    No. 4D11-2869.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2012.

      William A. Fleck of Jupiter Legal Advocates, Jupiter, for appellants.
    Laura M. Manning-Hudson of Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellants, Kenneth T. Kaufman, Deborah J. Kaufman and Jeremey Kaufman, appeal the trial court’s Summary Final Judgment of Foreclosure. Appellee, Iro-nhorse Property Owners Association, Inc., agrees that the entry of summary judgment was premature and confesses error. We accept the appellee’s confession of error, and reverse and remand this cause to the trial court for further proceedings consistent herewith.

Reversed and Remanded.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    Timothy THOMPKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-758.
    District Court of Appeal of Florida, Third District.
    June 13, 2012.
    Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Heidi Milan Caballero, Assistant Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before SHEPHERD and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Poole, 730 So.2d 340 (Fla. 3d DCA 1999); State v. Livingston, 681 So.2d 762 (Fla. 2d DCA 1996); S.L.R. v. State, 652 So.2d 978 (Fla. 5th DCA 1995).


author: SHEPHERD, J.

text:
    Ernst KING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1092.
    District Court of Appeal of Florida, Third District.
    June 13, 2012.
    Ernst King, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Ernest King purportedly seeks review of an order concerning his Florida Rule of Criminal Procedure “3.800(a) motion to correct illegal sentence.” We dismiss the appeal without prejudice as premature.

On October 6, 2011, King filed a “Rule B.800 Motion to Correct Illegal Sentence,” in which he raises a single issue: whether King is entitled to sentencing relief where there are no qualifying prior crimes sufficient to impose habitual felony offender status. The record on appeal contains two orders. The first order, entered and rendered March 27, 2012, states, “The defendant has requested placement at South Bay Correctional Institute] to take advantage of educational and vocational programs offered at that facility. The court recommends that the Department place the defendant at that facility.” The second order, entered March 27, 2012, and rendered April 9, 2012, states, “The court recommends the defendant [be] housed at South Bay Correctional Facility to Take Advantage of educational and vocational programs at the facility.”

We are unable to determine how the trial court arrived at its orders changing King’s “residence.” Regardless, neither the record nor the trial court docket reflects any ruling by the trial court on the actual issue raised in King’s October 6, 2011, Rule 3.800 motion and response by the State dated November 17, 2011.

Because there presently is no reviewable order from which this court might grant relief, the appeal is dismissed without prejudice to King filing an appropriate motion if and when the time comes.

Appeal dismissed.


text:
    Catherine CLUSSMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D11-2019, 1D11-2020, 1D11-2021.
    District Court of Appeal of Florida, First District.
    June 13, 2012.

      Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Catherine Clussman appeals judgments and sentences in three consolidated cases. We approve the judgments, but agree that the sentences contain several errors, and reverse and remand with instructions to enter corrected written sentences and orders of probation. Ms. Clussman preserved the necessary points by filing motions pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

First, the sentences imposed in count II of each case — sixty months in prison followed by two years of probation — are illegal, because Ms. Clussman was convicted of third-degree felonies in each of these counts. A sixty-month term of imprisonment is the maximum sentence that the trial court could have legally imposed for a third-degree felony. See § 775.082(3)(d), Fla. Stat. (2010). The state concedes error on this point.

Next, the trial court did not orally pronounce special conditions of probation 3 and 20 at sentencing. They must therefore be stricken from the written order of probation. See Justice v. State, 674 So.2d 123, 124 (Fla.1996) (holding “special conditions of probation must be imposed at sentencing and may not be imposed at resentencing”).

Finally, the trial court erred by imposing a $1000 fine pursuant to section 775.083(1), Florida Statutes (2010), and an accompanying $50 surcharge pursuant to section 938.04, Florida Statutes (2010), in each case. Fines under section 775.083(1) are discretionary, and “must be pronounced orally at sentencing.” See Bryant v. State, 47 So.3d 952, 953 (Fla. 2d DCA 2010) (citing Dadds v. State, 946 So.2d 1129, 1130 (Fla. 2d DCA 2006)). The trial court’s “lump sum” pronouncement of all costs and fines was not sufficient. See Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012).

Accordingly, we reverse and remand with instructions to strike, in each case, the probationary terms on each count II, the special conditions of probation 3 and 20, and the $1000 fine and accompanying $50 surcharge.

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


text:
    Susan MORROW, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-2527.
    District Court of Appeal of Florida, First District.
    June 13, 2012.

      Susan Morrow, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Pettway v. State, 776 So.2d 930 (Fla.2000) (recognizing that where a party has been banned from appearing in a tribunal without counsel, that does not authorize the party to proceed pro se in another tribunal when the banning court is the proper forum).

VAN NORTWICK, THOMAS, and SWANSON, JJ., concur.


text:
    Ernest KNIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2416.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    Ernest Knight, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5) (“In no ease shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review.”).

VAN NORTWICK, THOMAS, and SWANSON, JJ., concur.


text:
    Naveed AZAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1862.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    Naveed Azam, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Lee v. State, 939 So.2d 154, 155 (Fla. 1st DCA 2006) (holding dismissal without prejudice to refile a facially sufficient motion is a nonap-pealable, nonfinal order); Williams v. State, 884 So.2d 374 (Fla. 2d DCA 2004) (dismissal without prejudice renders an order nonfinal and nonappealable).

VAN NORTWICK, THOMAS, and SWANSON, JJ., concur.


text:
    Keith Allen HARVEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0835.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    Keith Allen Harvey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General; Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the September 13, 2011, order in Clay County Circuit Court Case Number 10-1998-CF-1144-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

VAN NORTWICK, THOMAS, and SWANSON, JJ., concur.'


author: MAY, C.J.

text:
    Raul COSME, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3787.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his convictions and sentences for two counts of attempted second-degree murder and one count of shooting into an occupied vehicle. He argues the trial court erred in admitting evidence of his gang affiliation and hierarchy, in failing to instruct the jury on attempted manslaughter although no request was made to do so, and in sentencing the defendant on the attempted second-degree murder charges as first-degree felonies. The State agrees with the defendant’s sentencing argument. We therefore reverse the sentences; we find no error in the other two issues raised.

The State charged the defendant as a principal with two counts of attempted first-degree murder (Counts I & II) and shooting into an occupied vehicle (Count III), and filed notices of intent to seek Habitual Violent Felony Offender and Prison Releasee Reoffender enhanced sentences. The State later filed its motion to amend the information to include language incorporating the elements of attempted second-degree murder with a firearm.

The defendant sought to exclude any reference to his affiliation with, and leadership role in, a gang. He argued the evidence was irrelevant and prejudicial. The State sought a pre-trial order regarding the admissibility of the defendant’s gang membership. The trial court granted the State’s motion. The trial court found:

[T]he evidence of Defendant’s gang membership/leadership and consequences of disobeying the Defendant’s orders [is] 1) relevant 2) more probative than prejudicial to show motive and/or intent and/or 3) ... inextricably intertwined. Evidence concerning the conflict between the Latin Kings and Sucios also is admissible but should be limited so as not to become a feature of this trial.

We have reviewed the admissibility of the defendant’s gang affiliation and find no error in its admission.

The defendant also argues the trial court fundamentally erred in failing to give the attempted manslaughter instruction. We disagree. Because the defendant failed to request the instruction, the omission must rise to the level of fundamental error before we can review it. See Gomez v. State, 5 So.3d 700, 702 (Fla. 5th DCA 2009) (‘When there is no timely request made by the defendant, a trial court’s failure to instruct on a necessarily-lesser included offense in a non-capital case does not constitute fundamental error.”). Given the facts surrounding the shooting, we find no fundamental error.

In his third issue, however, the defendant argues the trial court improperly enhanced his sentences on the two counts of attempted second-degree murder when the defendant was not the shooter and the jury did not find that he actually possessed a firearm. The State agrees that reclassification of the charges as first-degree felonies, pursuant to section 775.087, Florida Statutes (2005), was improper.

“ ‘The legality of a sentence is a question of law and is subject to de novo review.’ ” Lockhart v. State, 980 So.2d 613, 615 (Fla. 4th DCA 2008) (quoting Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005)).

Because the jury did not make a specific finding — and the evidence does not support — that the defendant actually possessed a firearm during the commission of the offense, the sentence is illegal. See State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992) (“[W]hen a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.”). The trial court improperly enhanced the defendant’s convictions on Counts I and II to first-degree felonies. Accordingly, we reverse and remand the case for re-sentencing on these two counts.

Reversed in part and Remanded.

HAZOURI and GERBER, JJ., concur.


text:
    Raymond CRITTENDEN IV, Appellant, v. Kasorn DAVIS, Appellee.
    No. 4D10-3665.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Emily Joyce Phillips of Phillips Lanier, Miami, for appellant.
    No brief filed for appellee.
   PER CURIAM.

The father appeals a final judgment regarding timesharing and parental responsibility. We find that the trial court erred in modifying parental responsibility, denying the father an opportunity to be heard, imposing an improper sanction, and denying the father timesharing on any major holiday.

In 2008, a New Jersey court ordered the father to have legal and residential custody of the parties’ minor child. Although the court ordered the parties to provide a supplemental order regarding visitation, the parties never did because they were unable to agree. The father moved to Florida, and the mother moved to Oklahoma.

In 2009, the Broward County Circuit Court domesticated the New Jersey order. The Florida court ordered the parties to “agree on a timesharing schedule for the Mother and the minor child that reflects the same schedule that the Father had with the minor child when he [the child] resided with the Mother.” The court reserved jurisdiction to order a timesharing and holiday schedule in the event the parties were unable to agree.

The mother invoked the court’s jurisdiction by filing a petition for enforcement and/or modification of timesharing and parental responsibility. After a hearing, the court ordered the parents to exercise shared parental responsibility. While the father would continue to have majority timesharing, the court ordered that the majority timesharing would automatically transfer to the mother if the father did not substantially comply with the principles of shared parental responsibility and the timesharing schedule. Finally, the court ordered that the mother have the child for the duration of all school holidays, i.e., Martin Luther King Day, President’s Day, spring break, Memorial Day, the majority of summer vacation, Labor Day, Thanksgiving, Veteran’s Day, and Christmas break. From this order, the father appeals.

The father claims the trial court erred in modifying parental responsibility and timesharing where there was no substantial change in circumstances. We reject the father’s claim that the Florida order constituted a modification of time-sharing. Because the New Jersey order never established a timesharing schedule, the Florida order did not constitute a modification. However, we agree that the trial court erred in modifying parental responsibility from the father having “legal custody,” which is the Florida equivalent of sole parental responsibility, to the parents having shared parental responsibility without considering whether a substantial change in circumstances occurred. See § 61.13(2)(c), (3), Fla. Stat. (2010).

The father argues that the trial court denied him due process by pronouncing its ruling before he had an opportunity to present evidence on his behalf. The record reveals that the trial court pronounced its ruling after hearing sworn testimony only from the mother. While the father was present at the hearing, he was not afforded a similar opportunity to present sworn testimony and thus was deprived of due process. See Minakan v. Husted, 27 So.3d 695, 698-99 (Fla. 4th DCA 2010) (holding the trial court violated the wife’s due process rights by taking testimony from the husband but not allowing her to testify and present evidence); Begens v. Begens, 617 So.2d 360, 361 (Fla. 4th DCA 1993).

The father also challenges the provision requiring an automatic transfer of majority timesharing to the mother if he does not substantially comply with the parental responsibility and timesharing provisions of the order. “[C]ustody cannot be changed purely as punishment for frustration of visitation rights in the absence of evidence of what is in the best interests of the children.” Begens, 617 So.2d at 361. “Changing ... custody of a child is not a device to be used to obtain compliance with other court orders.” Id. (quoting Crippen v. Crippen, 508 So.2d 1339, 1340 (Fla. 4th DCA 1987)). An automatic penalty provision “may, in the absence of a finding that such a change is in the best interest of the children, penalize the children for the parent’s contumacious conduct.” Chapman v. Prevatt, 845 So.2d 976, 983 (Fla. 4th DCA 2003) (citation omitted). As such, the automatic time-sharing transfer provision constituted an impermissible sanction.

Finally, the father argues that the trial court abused its discretion in denying him timesharing on any major holiday and suggests that holidays should be shared on a rotating schedule. “[W]here visitation is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision.” Todd v. Guillaume-Todd, 972 So.2d 1008, 1006 (Fla. 4th DCA 2008). The trial court imposed the timesharing schedule that it did because it found that the father exercised timesharing on all holidays when the child resided with the mother. Although the father denied exercising visitation on a schedule like that, he was not afforded an opportunity to present sworn testimony on his behalf. Additionally, comments made during the hearing indicate that such timesharing may have occurred while both parties were still residing in the same state.

In sum, we reverse and remand for the trial court to hold a hearing during which the father is to be afforded an opportunity to present evidence on his behalf. On remand, the trial court should consider whether there is a substantial change in circumstances justifying modification of parental responsibility, and the court should revisit the timesharing schedule as it pertains to holidays. The court shall omit from its new order any automatic penalty provision with respect to timeshar-ing.

Reversed and remanded.

POLEN, GROSS and LEVINE, JJ., concur.


author: KHOUZAM, Judge.

text:
    Michelle ROWE f/k/a Michelle Borysek-Rodriguez, Petitioner, v. Jose A. RODRIGUEZ-SCHMIDT, Respondent.
    No. 2D11-5653.
    District Court of Appeal of Florida, Second District.
    June 13, 2012.

      Victor R. Smith and Jeffrey I. Burry of Frost Van Den Boom & Smith, P.A., Bar-tow, for Petitioner.
    Nathaniel White, Bartow, for Respondent.
   KHOUZAM, Judge.

Michelle Rowe, the Former Wife, filed a petition for writ of certiorari to review the trial court’s order granting a motion to compel discovery filed by Jose Rodriguez-Schmidt, the Former Husband. Because the trial court departed from the essential requirements of the law in granting the motion, we grant the petition.

After the parties’ divorce was finalized in May 2007, the Former Husband filed a motion to modify his child support obligation, which was granted in January 2010. The Former Wife later discovered that the Former Husband had misstated his income in litigating the modification and successfully moved to set it aside in June 2011: As part of that litigation, the Former Wife sought attorney’s fees under section 61.16, Florida Statutes (2011).

In litigating her entitlement to fees, the Former Wife complied with the Former Husband’s request for her 2009 and 2010 tax returns but redacted most of the information because the returns were filed jointly with her current husband, a non-party wanting to protect his financial privacy. The Former Husband filed a motion to compel the Former Wife to provide unredacted copies of these tax returns, arguing that her current husband waived any right to privacy he had by involving himself in the litigation.

After a hearing on October 14, 2011, the trial court granted the Former Husband’s motion to compel, finding that the documents were relevant and the nonparty current husband waived his right to privacy. The Former Wife timely filed this petition seeking to quash the order, arguing that the decision lacked a required evidentiary basis. We agree.

A three-pronged test must be satisfied in order to grant certiorari relief: “[a] petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). Certiorari relief is thus appropriate only where “a lower court has departed from the essential requirements of the law or when a lower court has acted in excess of its jurisdiction, and no appeal or direct method of reviewing the proceeding exists.” Williams v. Oken, 62 So.Bd 1129, 1132 (Fla.2011).

“An order compelling the production of documents by a nonparty is reviewable by certiorari because he or she has no adequate remedy by appeal.” Rappaport v. Mercantile Bank, 17 So.3d 902, 905 (Fla. 2d DCA 2009); see also Borck v. Borck, 906 So.2d 1209, 1211 (Fla. 4th DCA 2005) (“Because the order requires financial information from [nonparties,] ... the petitioners have alleged irreparable harm in the invasion of their privacy rights.”). The order the Former Wife challenges grants the Former Husband’s motion to compel unredacted copies of the Former Wife’s 2009 and 2010 income tax returns filed jointly with her current husband, a non-party to these proceedings. Therefore, a review on the merits is appropriate.

“Article I, section 23, of the Florida Constitution protects the financial information of persons if there is no relevant or compelling reason to compel disclosure.” Borck, 906 So.2d at 1211. This is because “personal finances are among those private matters kept secret by most people.” Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998) (citing Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985)). The burden to prove the information is relevant or reasonably calculated to lead to the discovery of admissible evidence is on the party seeking the information. Spry v. Prof'l Emp'r Plans, 985 So.2d 1187, 1188-89 (Fla. 1st DCA 2008).

Because of the strong public policy underlying this constitutional protection, “[t]he relevance of financial information should be determined only after an eviden-tiary hearing.” Id. at 1188-89. Accordingly, it has been held a departure from the essential requirements of the law where a “trial court ordered production of [nonparty] financial information without any evidentiary inquiry as to its relevance.” Borck, 906 So.2d at 1211; see also Spry, 985 So.2d at 1188 (“[T]he JCC departed from the essential requirements of law by ordering discovery without considering evidence as to its relevance.”).

Here, the trial court departed from the essential requirements of the law because it ordered production of a nonparty’s financial information without considering any evidence regarding its relevance. A review of the transcript from the October 14, 2011, hearing reveals that the Former Husband provided no sworn testimony and nothing was moved or admitted into evidence. The only argument that the Former Husband’s counsel made was pointing out to the judge some copies of billing statements allegedly showing that the Former Wife’s attorney had communicated with the nonparty current husband. However, nothing in the transcript or remaining record indicates that they were identified or admitted into evidence.

Consequently, the trial court only heard the attorneys’ unsworn argument, which does not constitute evidence. See DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998). In this case, just as in Spry, “although a hearing was held, Respondent!] presented no evidence as to the relevance of [Petitioner]’s financial information.” 985 So.2d at 1189. And as in Borck, the trial court “rel[ied] entirely on [Respondent's council’s [sic] representation ... without even taking testimony from the parties.” 906 So.2d at 1211. Accordingly, we must grant the writ and quash the trial court’s order compelling discovery.

Even if the documents did qualify as evidence, however, we note that the result of this petition would remain the same. It is clear from the briefs and transcript that the billing statements were utilized in an attempt to prove that the Former Wife’s current husband was involved in the litigation and had thus waived his right to privacy in the documents. Even if we assume the accuracy of the Former Husband’s assertions on this matter, his burden as “the party seeking discovery” was to prove “that the information is relevant.” Spry, 985 So.2d at 1189 (emphasis added).

At most, the billing statements show that the Former Wife’s nonparty current husband spoke with the Former Wife’s attorney. We cannot conceive how having spoken to an attorney, without more, translates into evidence supporting the relevance of these financial documents or evidence reasonably calculated to lead to the discovery of admissible evidence. Because no evidence of the relevance of the unre-dacted tax returns was introduced at the hearing, it was a departure from the essential requirements of the law to order their disclosure. For this reason, we grant the petition for' certiorari and quash the trial court’s order granting the Former Husband’s motion to compel.

Petition granted; order quashed.

CASANUEVA and BLACK, JJ., Concur.


author: ROTHENBERG, J.

text:
    The STATE of Florida, Petitioner, v. Adonis LOSADA, Respondent.
    No. 3D11-3020.
    District Court of Appeal of Florida, Third District.
    June 13, 2012.

      Pamela Jo Bondi, Attorney General, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Aaron Clemens, Assistant Public Defender, West Palm Beach, for respondent.
    Before SUAREZ, CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, J.

In this petition for writ of certiorari, the State seeks to quash an order issued by the Fifteenth Judicial Circuit Court of Palm Beach County (“the Palm Beach circuit court”), transferring venue of charges filed against the defendant, Adonis Losada (“the defendant”), in the Palm Beach circuit court, and ordering that these charges be consolidated with separate criminal charges filed against the defendant in the Eleventh Judicial Circuit Court of Miami-Dade County (“the Miami-Dade circuit court”). Because we conclude the Palm Beach circuit court acted in excess of its jurisdiction, and the order issued is a departure from the essential requirements of law resulting in irreparable harm, we grant the petition, and quash the order under review. See State v. Luis, 949 So.2d 277, 277 (Fla. 4th DCA 2007) (concluding that the State may seek certiorari review of non-final orders transferring venue and ordering consolidation); State v. Lozano, 616 So.2d 73, 76 (Fla. 1st DCA 1993); Hudson v. Hofmann, 471 So.2d 117, 118 (Fla. 2d DCA 1985) (“Common law certio-rari is the proper vehicle to review whether the lower court acted in excess of its jurisdiction.”).

The operative facts are as follows. The State alleges that on August 28, 2009, the defendant sent an image of child pornography from his computer to Detective Ramos in Palm Beach County, who was posing as a bilingual, bisexual adult male. On September 14, 2009, the defendant allegedly sent an additional thirty-two child pornography images to Detective Ramos in Palm Beach County. The Defendant was subsequently charged in Palm Beach circuit court with thirty-three counts of transmission of child pornography and thirty-three counts of computer pornography in connection with the images sent to Detective Ramos on August 28, 2009, and September 14, 2009.

On September 18, 2009, twenty-one days after the initial image and four days after the additional images were allegedly transmitted by the defendant to Detective Ramos in Palm Beach County, a search warrant was executed by the Miami Beach Police Department in Miami-Dade County. The defendant’s computer was seized, and sixteen child pornography images were found on the defendant’s computer — the first image sent to Detective Ramos on August 28, 2009, and fifteen images that had not been transmitted to Detective Ramos. The defendant was charged in Miami-Dade circuit court with sixteen counts of possession of sexual performance of a child in connection with the images found on his computer on September 18, 2009.

Nearly two years after the defendant was charged in these two cases, he filed a motion in Palm Beach circuit court to transfer venue and consolidate the charges filed in Palm Beach County with the charges filed in Miami-Dade County. Over State objection, the Palm Beach circuit court granted the defendant’s motion and issued an order transferring venue to Miami-Dade County and consolidating the Palm Beach County charges with the Miami-Dade County charges.

LEGAL ANALYSIS

Section 910.03(1), Florida Statutes (2011), provides that “Except as provided in s. 910.035 or in subsection (2), criminal prosecutions shall be tried in the county where the offense was committed.... ” “If the acts constituting one offense are committed in two or more counties, the offender may be tried in any county in which any of the acts occurred.” § 910.05, Fla. Stat. (2011).

If the State commences prosecution of criminal charges in a county where venue properly lies, the defendant, under certain limited circumstances, may seek a change in venue. For example, if the State is unsure which county the offense was committed, it may charge the defendant in two or more counties conjunctively, and before trial the defendant may elect the county in which he or she will be tried. § 910.03(1); see also Art. I, § 16(a), Fla. Const, (providing that if the county where the offense was committed is unknown and the crime is charged conjunctively, the accused may elect in which of these counties the trial will take place). Or, if the court determines that the defendant cannot receive a fair and impartial trial in the county where the offense was committed, the defendant may request a change in venue. § 910.03(3). If a defendant has criminal charges in one county and wishes to plead guilty or nolo contendere and waive trial in the county where the charges are pending, he may request resolution and disposition of the case in the county where he is being held, and if the prosecuting attorney in the jurisdiction where the charges are pending approves in writing, the information or indictment may be transmitted to the county where the defendant is being held to allow him to enter his plea. § 910.035(1).

Additionally, rule 3.240(a), Florida Rules of Criminal Procedure (2011), which specifically addresses changes in venue, provides:

(a) Grounds to Motion. The state or the defendant may move for change of venue on the ground that a fair and impartial trial cannot be had in the county where the case is pending for any reason other than the interest and prejudice of the trial judge.

None of these circumstances exist in this case. The sole grounds relied on by the defendant and the Palm Beach circuit court to transfer venue to the Miami-Dade circuit court are that the crimes are related, and, therefore, consolidation will “serve to utilize judicial resources more efficiently.” Although consolidation may be more efficient, consolidation and venue are entirely different issues. The defendant does not have the right to choose venue from the counties in which the crimes allegedly took place, see Martin v. State, 488 So.2d 653, 653-55 (Fla. 1st DCA 1986), and the interests in practicality, efficiency, expense, or convenience are not the operative determinative factors.

State v. Luis, 949 So.2d 277 (Fla. 4th DCA 2007), is directly on point. In Luis, the Fourth District granted the State’s petition for certiorari relief and quashed the Broward County circuit court’s order transferring the criminal charges before it to Miami-Dade County circuit court, and ordering consolidation of the charges in the Miami-Dade County prosecution. As in the present case, the Broward County circuit court’s order was premised on “the interest of judicial economy” as the crimes were related. In quashing the order, the Fourth District concluded the change in venue was a departure from the essential requirements of law resulting in irreparable harm. Id. at 278.

Accordingly, we grant the petition, quash the order under review, and order that the information filed in Palm Beach County circuit court be reinstated forthwith. We do so without prejudice to the defendant to challenge on double jeopardy grounds any charges filed in one county that are identical to any charges tried in the other county.

Petition granted, order quashed.


author: BLACK, Judge.

text:
    Wayne David SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3935.
    District Court of Appeal of Florida, Second District.
    June 13, 2012.

      Wayne David Smith, pro se.
   BLACK, Judge.

Wayne David Smith appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised several related claims. We affirm the postconviction court’s denial of Smith’s motion with respect to his claim based on Padilla, v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). However, we reverse and remand for the post-conviction court to consider Smith’s other claims.

In January 2010, Smith pleaded guilty to two counts of lewd fondling and was sentenced to two years’ imprisonment followed by four years’ probation. In January 2011, as a response to the initiation of deportation proceedings, he filed the current motion pursuant to rule 3.850, in which he raised one long stream of allegations. First, Smith alleged that his counsel was ineffective for failing to advise him that he would be deported as a result of his plea. See Padilla, 130 S.Ct. at 1483 (holding that when eligibility for deportation as the result of a guilty plea is clear, counsel must advise the defendant accordingly). Smith’s motion continued with several other allegations in support of his argument that no valid plea was ever entered in his case. In denying Smith’s motion in its entirety, the postconviction court simply found that Smith’s sentence became final in February 2010 and that Padilla does not apply retroactively; i.e., it “does not apply to Florida defendants whose convictions already were final as of March 31, 2010, when that case was decided.” Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011).

We affirm the postconviction court’s finding with respect to Smith’s Padilla claim. 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, 130 S.Ct. 1473, 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, 130 S.Ct. 1473 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

However, because the postconviction court neglected to address any other aspect of Smith’s motion, we reverse and remand for the postconviction court to consider all of Smith’s claims that are unrelated to Padilla.

Affirmed in part; reversed in part; remanded.

DAVIS and CRENSHAW, JJ„ Concur.


author: CASANUEVA, Judge.

text:
    Rebecca A. HENDERSON f/k/a Rebecca A. Lyons, Appellant, v. Stephen G. LYONS, Appellee.
    No. 2D11-1884.
    District Court of Appeal of Florida, Second District.
    June 13, 2012.
    Debra J. Sutton of Sutton Law Firm, Bartow, and Raymond J. Rafool of Raymond J. Rafool, LLC, Miami, for Appellant.
    No appearance for Appellee.
   CASANUEVA, Judge.

Rebecca A. Henderson (the Former Wife) appeals an order on her motion for civil contempt in which the trial court denied her request for contribution from Stephen G. Lyons (the Former Husband) for psychological counseling for their minor children. Because psychological counseling expenses are medical expenses that may require contribution dependent upon the facts and circumstances of each case, we reverse and remand for reconsideration of this issue. We affirm on all other issues raised without comment.

The Former Wife and Former Husband were divorced in 2006. There are two minor children from the marriage. In 2010, the Former Wife filed a motion for civil contempt, claiming that the Former Husband had failed to pay his half of psychological counseling and optical exams for the children. After holding a hearing (at which the Former Husband did not appear) the trial court denied the motion for contempt. It found that “[n]o provision is made in the Final Judgment for counseling expenses,” and so it denied the Former Wife’s request for contribution towards those expenses. With regard to the optical exams, the court determined that the Former Husband’s conduct did not rise to the level of contempt “provided he makes [a] payment [of his half, $160.50,] within 10 days of this order.”

On appeal, the Former Wife argues that the trial court erred in holding that she could not obtain contribution towards psychological counseling expenses. Insofar as the trial court ruled that a contribution was not obtainable because the court had not expressly discussed them in the final judgment, we agree that the trial court erred.

A parent’s responsibility for a child’s medical expenses includes those expenses incurred for reasonable psychological care. See Engar v. Raizin, 525 So.2d 470 (Fla. 4th DCA 1988); Sulman v. Sulman, 510 So.2d 908 (Fla. 4th DCA 1987). And in this case, the final judgment does not limit that general principle. The pertinent part of the final judgment is as follows:

[Aside from the children’s medical and dental insurance premiums and deductibles, for which the Husband is solely responsible,] Husband and Wife shall share equally all other reasonable medical and dental expenses incurred on behalf of either of the two children. For purposes of this Judgment, the term “medical and dental expenses” includes pharmaceutical expenses, non-emergency dental care, orthodontic treatment, eye examinations, and eyeglasses.

The final judgment used inclusive language to provide examples of what constitutes “medical and dental expenses.” However, the language did not suggest that the list was exhaustive. Further, the marginal examples included demonstrate that the list was not meant to exclude all other possible medical expenses. Lastly, had the trial court meant the list to be exhaustive, it would have been in derogation of the law established in Sulman.

Although we reverse the trial court’s ruling that counseling expenses are prohibited by the final judgment, we recognize that “the father has a right to contest the necessity and reasonableness of the services in issue and his ability to pay for those services.” Sulman, 510 So.2d at 909. On remand, the trial court shall reconsider the psychological counseling expenses and provide the Former Husband the opportunity to contest the reasonableness and the necessity of those expenses, if he so chooses.

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

ALTENBERND and VILLANTI, JJ„ Concur.


author: GERBER, J.

text:
    Gillion Anthony GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-531.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Antony P. Ryan, Regional Counsel, Nancy Jack and Genevieve Hall, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from his convictions and sentences for second degree murder with a firearm, aggravated battery with a firearm, willfully discharging a firearm within 1,000 feet of a person, and shooting into an occupied vehicle. He raises two arguments: (1) the trial court gave an erroneous jury instruction on manslaughter as a lesser included offense of second degree murder; and (2) the trial court erred in sustaining the state’s objection to certain cross-examination of a state witness.

We agree with the first argument. We direct the circuit court to vacate the defendant’s conviction and sentence for second degree murder with a firearm and conduct a new trial on that count. State v. Montgomery, 39 So.3d 252 (Fla.2010).

The second argument is without merit. Therefore, we affirm the defendant’s convictions and sentences for aggravated battery with a firearm, willfully discharging a firearm within 1,000 feet of a person, and shooting into an occupied vehicle.

Affirmed in part, reversed in part, and remanded for new trial on Count I only.

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


text:
    Thelma WEISENBERG and Deena Weisenberg, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Harbor View Mortgage Loan Trust Mortgage Loan Pass-Through Certificates Series 2007-5, Appellee.
    No. 4D11-45.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Peter Ticktin, Jessica Ticktin, Joshua Bleil and Megan Alexander of The Ticktin Law Group, P.A., Deerfield Beach, for appellants.
    Heidi J. Weinzetl and Ronald M. Gaché of Shapiro, Fishman & Gaché, LLP., Boca Raton, for appellee.
   PER CURIAM.

Thelma and Deena Weisenberg appeal a summary final judgment of foreclosure in favor of Deutsche Bank, claiming that the loan servicer’s affidavit constituted inadmissible hearsay. We find that the affidavit complied with the requirements of the business records exception and affirm.

In support of its motion for summary judgment, the bank filed the affidavit of Cynthia Stevens, a supervisor at the bank’s servicing agent, American Home Mortgage Servicing, Inc., who stated that appellants owed in excess of $444,000. After deposing Stevens, appellants moved to strike her affidavit, claiming she did not have sufficient personal knowledge of the matters sworn to in the affidavit. The trial court denied the motion to strike and entered a final judgment of foreclosure.

Business records may be admitted under section 90.803(6) if the proponent of the evidence demonstrates the following through a records custodian or other qualified person:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).

In Glarum v. LaSalle Bank National Ass’n, 83 So.3d 780 (Fla. 4th DCA 2011), we found that the affidavit of a loan servicing specialist constituted inadmissible hearsay where the specialist could not state in his deposition whether the records he relied upon were made in the regular course of business. He “did not know who, how, or when the data entries were made into [the servicer’s] computer system.” Id. at 782. He had “[n]o idea” who made the entries when payments were made or when the account needed to be updated. Id. Nor did he know whether there was a department that input account activity into the databases. The specialist had a total lack of knowledge as to how his company’s own data was produced.

Unlike in Glarum, the deposition excerpts show that Stevens knew how the data was produced. Stevens testified that the cashiering department was responsible for collecting and applying payments. Information relating to the servicing of the loans was kept in a program known as the mortgage servicing platform, which she relied on to verify the specific figures in her affidavit. Her testimony demonstrated that she was familiar with the bank’s record-keeping system and had knowledge of how the data was uploaded into the system.

In sum, we find that the affidavit satisfied the business records exception. As such, we affirm the denial of appellants’ motion to strike and affirm the final judgment of foreclosure.

Affirmed.

POLEN, GROSS and LEVINE, JJ„ concur.


text:
    J.A.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-234.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeannie M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

J.A.B. timely appeals an adjudication of delinquency and disposition of two consecutive terms of probation after being found guilty of two counts of battery. First, he challenges one of his two adjudications for battery. He asserts the trial court erred in denying a motion for judgment of dismissal on grounds the circumstantial evidence was insufficient. Second, he claims the trial court violated his Fifth Amendment right to maintain his innocence by imposing a harsher disposition as a result of his refusal to apologize at disposition. We reverse on the first issue and find the second issue has no merit without further discussion.

L.B. was walking home from school when she saw J.A.B. and another boy named Isaiah cross the street and begin following about ten feet behind her. The boys tried to get L.B.’s attention by calling to her. L.B. took one glance back, turned around, and continued walking. She then felt someone slap her butt. She immediately turned around and saw J.A.B. right behind her and Isaiah two steps behind J.A.B. She asked J.A.B. why he slapped her, but both boys just smiled and laughed at her. L.B. turned back around and continued walking. Five steps later, she felt someone grab her butt. She did not see who grabbed her, but saw someone out of the corner of her eye, and assumed it was J.A.B. because he was closer than Isaiah was the first time she turned around. L.B. did not turn around, but instead went straight to her house and told her parents. J.A.B. was ultimately arrested for lewd and lascivious conduct and battery, although the former charge was reduced to simple battery.

At trial, J.A.B. moved for judgment of dismissal as to the second count of battery on grounds that L.B. did not testify to seeing him grab her buttocks the second time. The trial court denied the motion, which J.A.B. claims was error because there was insufficient circumstantial evidence to rebut every reasonable hypothesis of innocence — that Isaiah grabbed L.B. the second time.

“A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence.” State v. Law, 559 So.2d 187, 188 (Fla.1989). “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Id.

Here, the evidence that J.A.B. was guilty of the second battery was entirely circumstantial, as there was no direct evidence J.A.B. touched L.B. the second time. L.B.’s testimony that, after she was touched a second time, she saw someone out of the corner of her eye and assumed it was J.A.B. is not inconsistent with the theory that Isaiah moved forward past J.A.B. in the five steps between touches and touched L.B. the second time. Therefore, we affirm J.A.B.’s adjudication for one count of battery, but reverse the adjudication on the second count of battery.

Affirmed in part, and Reversed in Part, and Remanded.

WARNER, STEVENSON and CONNER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Marcia BEEKHUIS, as Trustee of Irene Morris Revocable Trust, Appellant, v. Steven MORRIS, Appellee.
    No. 4D12-195.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Howard K. Heims of Littman, Sherlock & Heims, P.A., Stuart, for appellant.
    James P. Covey, Vero Beach, for appel-lee.
   DAMOORGIAN, J.

Marcia Beekhuis appeals the probate court’s non-final “Order Granting Emergency Motion to Appoint Court Monitor and to Enjoin Trustee from Sale of Ward’s Home and Request for Immediate Injunction.” Beekhuis argues, among other things, that the probate court did not have jurisdiction over the trust assets or her as trustee of the Irene Morris Revocable Trust. We agree and reverse.

Irene Morris is the mother of Appellant, Marcia Beekhuis, and Appellee, Steven Morris. Irene Morris created a trust which provided that Morris and her daughter would serve as co-trustees. Under the terms of the trust, if two medical doctors opined that a trustee was legally disabled, then that trustee would be deemed incapacitated and the other co-trustee would assume the duties of the incapacitated trustee. In 2010, Beekhuis, individually and not in her capacity as co-trustee, filed a petition to determine whether her mother was incapacitated and to appoint a plenary guardian. The petition did not refer to the trust. Steven Morris filed a counter-petition. Ultimately, the probate court entered an “Order Appointing Plenary Guardian of Person and Property” and issued “Letters of Plenary Guardianship of the Person and Property” naming Steven Morris as the guardian.

Soon thereafter, Steven Morris filed several motions in the guardianship proceeding, in which he sought to have his sister removed as trustee of his mother’s trust and to compel the trustee to relinquish assets. In response, Beekhuis made limited appearances only in her individual capacity, arguing that the probate court lacked jurisdiction over the trustee and the trust property in the guardianship proceeding. Beekhuis participated in the guardianship proceeding only in order to remove Steven Morris as guardian and engage in discovery.

Ultimately, Morris filed an “Emergency Motion to Appoint Court Monitor and to Enjoin Trustee from Sale of Ward’s Home and Request for Immediate Injunction.” Without notice or hearing, the probate court entered an ex parte order prohibiting the sale of Irene Morris’ homestead and directed Beekhuis, as trustee, to convey the property from the trust to Steven Morris. Beekhuis sought reconsideration, or in the alternative, to dissolve the injunction. The probate court never ruled on her motion. This appeal follows.

Beekhuis argues that the probate court did not have jurisdiction over the trust or its trustee because she “filed no pleadings and sought no relief in her capacity as [tjrustee and did not subject either herself or the trust to the jurisdiction of the probate court.” See Chaffin v. Overstreet, 982 So.2d 11, 14 (Fla. 5th DCA 2008) (explaining that appearing before the probate court in one capacity does not subject that party in a separate capacity to the jurisdiction of the court); see also Mfrs. Nat. Bank of Detroit v. Moons, 659 So.2d 474, 475 (Fla. 4th DCA 1995) (holding that the probate court did not have jurisdiction over the trustees because there was no service of process on trustees and the trustees did not voluntarily submit to the jurisdiction of the court).

We conclude that it was error for the probate court to assert jurisdiction over the trust property and Beekhuis, in her capacity as trustee, when the original pleadings never raised any claim over the trust or its property, and Beekhuis continually asserted that the court lacked jurisdiction over the trust and trustee. See Chaffin, 982 So.2d at 14. Our holding renders moot the other issues raised on appeal.

Reversed.

WARNER and CONNER, JJ., concur.

      . In addition to the issue addressed in this opinion, Beekhuis argued that the ex parte order failed to comply with section 744.1075, Florida Statutes (2011) and rule 5.720, Florida Probate Rules. We find merit to her claims, but need not address them in light of the probate court’s lack of jurisdiction.


text:
    Paul J. COVIELLO, Appellant, v. Mary Rogan COVIELLO, Appellee.
    No. 4D11-3143.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Eddie Stephens of Law Offices of John T. Christiansen, P.L., West Palm Beach, for appellant.
    Howard Rudolph and B. Niklas Briham-mar of Rudolph & Associates, LLP, (withdrawn as counsel after filing brief), West Palm Beach, and Mary Rogan Coviello, Palm Beach, pro se.
   DAMOORGIAN, J.

Husband seeks review of an order granting Wife temporary alimony. Pursuant to Wife’s motion for temporary relief and hearing thereon, the court entered an order awarding Wife $11,536.50 per month in temporary alimony. In addition to monthly alimony, the trial court ordered Husband to pay homeowner’s association fees in the amount of $47,489.00, property taxes in the amount of $41,506.34, and $200,000.00 in attorneys’ fees. We affirm.

“It is a very basic appellate truism that temporary relief awards are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances.” Pedraja v. Garcia, 667 So.2d 461, 462 (Fla. 4th DCA 1996) (citing Robbie v. Robbie, 591 So.2d 1006, 1008 (Fla. 4th DCA 1991)).

The parties were married for less than nine years before the divorce proceedings commenced. See Krafchuk v. Krafchuk, 804 So.2d 376, 380 (Fla. 4th DCA 2001) (noting that the end date of a marriage is marked by the filing date for the petition for dissolution of marriage); see also Jaffy v. Jaffy, 965 So.2d.825, 828 (Fla. 4th DCA 2007) (explaining that in short term marriages, where the parties have been married for less than ten years, the presumption is for rehabilitative alimony rather than permanent alimony if the parties are young and able).

The'trial court found that the Husband’s annual income was $360,000.00 and he had access to substantial assets that could be used to pay the temporary alimony, condominium expenses and attorneys’ fees. Wife provided the trial court with a list of her estimated needs totaling $12,683.00 per month. This figure was supported by testimony from Wife’s forensic accountant and her financial affidavit. Wife testified that she did not have any meaningful employment during the course of the marriage nor did she receive support from Husband since the petition for dissolution was filed. After imputing monthly income to Wife in the amount of $1,147.48, the court entered a detailed order concluding that Husband has the ability to pay, and the Wife has the need for temporary monthly • alimony in the amount of $11,536.50. This appeal follows.

In Bengisu v. Bengisu, 12 So.3d 283 (Fla. 4th DCA 2009), this Court provided the following test in determining an appropriate alimony award:

In determining whether and to what extent temporary alimony is required, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony. Stern v. Stern, 907 So.2d 701, 702 (Fla. 4th DCA 2005). Finally, both the requesting spouse’s need and the other spouse’s ability to pay must be supported by competent, substantial evidence. Driscoll v. Driscoll, 915 So.2d 771, 773 (Fla. 2d DCA 2005).

Bengisu, 12 So.3d at 286. While we are not unmindful that the term of marriage may not warrant permanent alimony, under the applicable standard of review and the record before us, we cannot conclude that the trial court abused its discretion with the temporary alimony award.

Affirmed.

WARNER and CONNER, JJ., concur.

      . We note that section 61.08(4), Florida Statutes (2010), which describes a "moderate-term marriage" as one “having a duration of greater than 7 years but less than 17 years,” does not apply to this case because the petition for dissolution was filed in April 2010.


text:
    S.D.E, Appellant, v. AGENCY FOR HEALTHCARE ADMINISTRATION, Appellee.
    No. 4D11-4221.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Shalom D. Ebbo, Fort Lauderdale, pro se.
    Tracy Lee Cooper, State of Florida, Agency for Health Care Administration, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315.

MAY, C.J., WARNER and GERBER, JJ., concur.


text:
    Juan Francisco SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4666.
    District Court of Appeal of Florida, Second District.
    June 13, 2012.
   PER CURIAM.

Juan Sanchez appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The postconviction court ruled that the motion was untimely, and we agree. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As we did in Barrios-Cruz, 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 the following question of great public importance:

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.

NORTHCUTT, KHOUZAM, and BLACK, JJ., Concur.