author: KELLY, Judge.

text:
    Kerry Harvell IRVIN, Appellant, v. Marcus Lane IRVIN, Appellee.
    No. 2D10-1562.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2011.

      Michael J. Park of Park, Ossian, Bar-naky & Park, P.A., Clearwater, for Appellant.
    Jeffrey A. Blau of Davis Island Law, Tampa, for Appellee.
   KELLY, Judge.

Kerry Harvell Irvin, the former wife, appeals from the order denying her motion to hold Marcus Lane Irvin, the former husband, in contempt for failure to pay child support and granting the former husband’s motion to enforce a mediation agreement. We reverse.

The parties’ marriage was dissolved by a final judgment that approved and incorporated a mediation agreement the parties had entered into on May 4, 2005. Among other things, the mediation agreement set forth the equitable distribution scheme agreed to by the parties. Pertinent here, it contained a provision stating that the parties would share equally in funds due under the “Turley Note Receivable” if any money was ever paid pursuant to the note. The agreement also designated the former wife as the primary residential parent, and the final judgment of dissolution provided that the former husband would pay monthly child support by income deduction order.

Subsequently, the former husband sought to modify the final judgment. His petition asked the court to award him primary residential custody of the parties’ children. As a result of the petition, the parties entered into a second mediation agreement. The agreement states that it “is intended to be a full settlement of all pending issues between the parties, except for any outstanding uncovered medical expenses for the minor children.” The agreement provides that neither parent will be designated as primary residential parent, and it eliminates the income deduction order, instead permitting the former husband to pay the amounts agreed to by the parties directly to the children’s school and to the former wife. Finally, it specifies that the former husband is to retrieve certain items of personal property remaining in the marital home within thirty days or the former wife will be free to dispose of those items. The court entered an order approving the second mediation agreement. That order, as well as the order amending the final judgment, provides that except for the changes reflected in the second mediation agreement, the parties’ previous final judgment “shall remain unmodified and in full force and effect.”

The former husband stopped paying child support as soon as the income deduction order was eliminated. In response, the former wife filed a motion for contempt. The former husband then filed a motion seeking to enforce the second mediation agreement alleging that, pursuant to that agreement, he was entitled to all of the Turley funds, which by that time had been received and were being held by the former husband’s attorney. The trial court conducted hearings on both parties’ motions. In support of his motion the former husband argued that because the second agreement specified the amount of the support payments to be received by the former wife but was silent regarding her entitlement to a share of the Turley funds that it meant she was no longer entitled to a share of those funds. The court accepted this argument and granted the former husband’s motion to enforce the mediation agreement. The court denied the former wife’s motion to hold the former husband in contempt; however, it did enter an income deduction order in the amount of $400 per month. The court did not make any determination regarding the amount of the arrearage owed by the former husband.

On appeal, the former wife first argues that the terms of the parties’ mediation agreements are unambiguous and that the trial court erred when it interpreted the agreements in a manner that divested her of her share of the Turley funds. The trial court’s interpretation of a mediation agreement is reviewed de novo. Silver v. Silver, 992 So.2d 886, 888 (Fla. 2d DCA 2008). A mediation agreement that has been ratified by the trial court “is subject to interpretation like any other contract.” Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996). The terms contained in such agreements should be given their plain meaning and “not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation.” Id.

Here, the language of the two mediation agreements is clear and unambiguous, and we agree with the former wife that the trial court’s interpretation of that language is contrary to its plain meaning. The first agreement states in pertinent part, “Turley Note Receivable: The parties have received a letter of protection for $33,000. At such time as this or any other sum is actually available, the parties shall equally share in said asset.” The second mediation agreement states that it is “a full settlement of all pending issues between the parties, except for any outstanding uncovered medical expenses for the minor children.” The only issue pending at that time was the former husband’s supplemental petition to modify custody— the issue of entitlement to the Turley funds had been resolved by the first agreement, and nothing in the former husband’s petition put the disposition of those funds in issue. Additionally, the order granting modification of the final judgment and incorporating the second agreement lists the modifications being made to the final judgment and states that, “[i]n all other respects the parties’ previous 2005 final judgment shall remain unmodified and in full force and effect.”

In concluding that the former wife was only entitled to receive the payments specified in the second mediation agreement, the trial court should have considered the circumstances surrounding the execution of the agreement. See Silver, 992 So.2d at 888-89 (explaining that when an agreement states it resolves the issues pending between the parties, the court must place itself in the position of the parties when they executed the agreement to determine what those issues are). When the parties entered into the second agreement, the only pending issue was the former husband’s petition for modification of custody. The disposition of the Turley funds was part of the equitable distribution scheme the parties had agreed to in their first mediation agreement. That distribution scheme had been incorporated into the final judgment of dissolution, and nothing in the former husband’s petition put that disposition at issue. Further, the trial court did not give effect to the language in the second agreement that provided “[i]n all other respects the parties’ previous 2005 final judgment shall remain unmodified and in full force and effect.” By changing the disposition of the Turley funds, the trial court modified the 2005 final judgment, contrary to the plain language of the second agreement. We therefore reverse the portion of the order granting the former husband’s motion to enforce the second mediation agreement.

The former wife also argues that the trial court erred when it denied her motion to hold the former husband in contempt without establishing an arrearage amount. The former husband does not dispute that he is in arrears with his child support and concedes that it was error for the trial court not to have made any findings regarding the amount of the arrearage. Accordingly, we reverse the denial of the former -wife’s motion for contempt and remand for further proceedings in accordance with this opinion.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ivonne FRADY f/k/a Ivonne Deringer, Appellant, v. James DERINGER, Appellee.
    No. 4D10-4166.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Rehearing Denied Jan. 10, 2012.

      Christopher N. Link of Christopher N. Link, P.A., Plantation, for appellant.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Seven years after the trial court entered an amended final judgment of dissolution of marriage upon default, the former husband filed a motion for relief from final judgment, claiming the final judgment was void because he did not receive notice of the hearing on default final judgment. After an evidentiary hearing, the trial court set aside the default final judgment with the exception of the portion of the judgment dissolving the marriage. Because there was not competent, substantial evidence to overcome the presumption of delivery that was raised by the certificate of service on the notice of hearing, we reverse the trial court’s order setting aside the default final judgment.

At the hearing on the motion, the evidence revealed the following: The former husband was personally served with the amended petition for dissolution of marriage. The former wife filed a motion for default. A hearing was set and a default was entered by the trial court. A hearing was set for final judgment upon default, and a final judgment was entered. Subsequently, the court entered an amended final judgment. The former husband admitted that the address on the certificates of service on the motion for default, the notice of hearing on the motion, and the notice of hearing for final judgment upon default was his correct mailing address. The former husband offered no explanation for his claim that he did not receive any mail related to his divorce, but received bills and other mail not related to his divorce. He could not explain why mail from various sources, including the former wife’s attorney, a. magistrate, a guardian ad litem, and the judge’s office, failed to reach his mail box. Further, the former husband testified that he did not know about the final judgment until he was arrested in 2009 for not paying child support. However, in 2004, eighteen months after the amended final judgment was entered, the former husband was served with the former wife’s petition for modification of the final judgment via substitute service upon a relative living at the former husband’s mailing address.

The standard of review of an order setting aside a default judgment is gross abuse of discretion. Halpern v. Houser, 949 So.2d 1155 (Fla. 4th DCA 2007). A certificate of service raises a presumption of delivery. W.T. Holding, Inc. v. State, Agency for Health Care Admin., 682 So.2d 1224 (Fla. 4th DCA 1996). A denial of receipt does not automatically overcome the presumption and an eviden-tiary hearing is necessary. Camerota v. Kaufman, 666 So.2d 1042 (Fla. 4th DCA 1996).

As the record does not contain competent, substantial evidence that the former husband did not receive notice, the trial court’s order setting aside the default final judgment was a gross abuse of discretion. The order is reversed, and we direct the trial court to reinstate the amended final judgment.

Reversed and remanded.

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Albert BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1224.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2011.
    Bernard F. Daley, Jr., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

The petitioner, Albert Black, sought ha-beas corpus relief in the Circuit Court for Orange County, although he was convicted of the offenses for which he was imprisoned in Lee County. The circuit court dismissed the petition. Mr. Black appeals that dismissal. It appears, however, that the entire basis for Mr. Black’s petition concerned purported errors related to the trial of his case. We, therefore, affirm the dismissal of his petition without prejudice to his raising the issues contained in his petition in Lee County. See Vale v. State, 946 So.2d 104 (Fla. 5th DCA 2007).

AFFIRMED.

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


text:
    Taquarvis BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3039.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2011.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Taquarvis Burton, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse Appellant’s conviction for attempted second-degree murder and remand this cause for a new trial. Burton v. State, — So.3d —, 2011 WL 1326258 (Fla. 5th DCA 2011); Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009). We once again certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011), and we withhold issuance of the mandate pending resolution of that conflict.

REVERSED and REMANDED.

SAWAYA, TORPY and LAWSON, JJ., concur.


author: EMAS, J.

text:
    Anthony SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-2193.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2011.
    Anthony Santiago, in proper person.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and EMAS, JJ.
   EMAS, J.

Anthony Santiago appeals the trial court’s denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons which follow, we vacate the sentence and remand for a new sentencing hearing.

Santiago was charged with, and convicted of, burglary of a conveyance with an assault or battery, in violation of section 810.02(2)(a), Florida Statutes (1999). The State followed the procedure required to have Santiago declared a prison releasee reoffender, pursuant to section 775.082, Florida Statutes (2009). Following a sentencing hearing, the trial court found that Santiago qualified as a prison releasee reoffender and sentenced him to life in prison. After his conviction and sentence was affirmed on appeal, Santiago filed a motion to correct illegal sentence, contending that the crime of burglary of a conveyance with an assault or battery is not a qualifying offense for purposes of the prison releasee reoffender statute. We agree.

The prison releasee reoffender (“PRR”) statute establishes enhanced and mandatory sentences under certain defined circumstances and for certain enumerated felonies. Section 775.082(9)(a), Florida Statutes defines “prison releasee reoffen-der”:

1.“Prison releasee reoffender” means any defendant who commits, or attempts to commit:
a. Treason;
b. Murder;
c. Manslaughter;
d. Sexual battery;
e. Carjacking;
f. Home-invasion robbery;
g. Robbery;
h. Arson;
i. Kidnapping;
j. Aggravated assault with a deadly weapon;
k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or bomb;
o. Any felony that involves the use or threat of physical force or violence against an individual;
p. Armed burglary;
q. Burglary of a dwelling or burglary of an occupied structure; or
r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827. 071, or s. 847.0135(5);
within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor or within 3 years after being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

(Emphasis supplied).

The State acknowledges that the crime of burglary of a conveyance with an assault or battery is not a specifically enumerated offense under section 775.082(9)(a). However, the State contends that it is a qualifying offense under the so-called “catchall” provision, section 775.082(9)(a)l.o (“Any felony that involves the use or threat of physical force or violence against an individual”). The State argues that, because the crime at issue requires the State to prove that the defendant committed either a battery or an assault in the course of the burglary, such an offense necessarily involves the “use or threat of physical force or violence.”

The Florida Supreme Court has held that, in determining whether an offense qualifies under PRR as one involving the use or threat of physical force or violence, we are to look to the essential elements of the offense charged, rather than the proof presented at trial. Perkins v. State, 576 So.2d 1310 (Fla.1991).

In Perkins, the defendant was charged with attempted cocaine trafficking and first-degree murder. His defense was self-defense, and the State contended that self-defense was not available to Perkins because he was committing a “forcible felony” at the time of his actions in purported self-defense. Section 776.08, Florida Statutes (1995) defines “forcible felony” by listing a number of offenses (e.g., murder, manslaughter, sexual battery, kidnapping, robbery, etc.) and providing a catchall: “any other felony which involves the use or threat of physical force or violence against any individual.” Because drug trafficking is not included in the list of enumerated forcible felonies, the question presented was whether drug trafficking constituted a forcible felony, as one “which involves the use or threat of physical force or violence against any individual.” Perkins, 576 So.2d at 1313. The trial court had determined that drug trafficking did meet the definition, because of the propensity for violence inherent in narcotics trafficking. The Florida Supreme Court disagreed with this analysis:

The statute does not say that a forcible felony is any felony that “may sometimes involve violence, or even a felony that “frequently does” involve violence. Rather, the statute requires that the felony actually “involves the use or threat of physical force or violence against any individual” (emphasis added). Taken in its ordinary and plain meaning, the term “involve” means “to contain within itself, to make necessary as a condition or result.” Its general sense is “to include.”
Thus, in the strict and literal sense required by Florida law, this language can only mean that the statutory elements of the crime itself must include or encompass conduct of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of the final clause of section 776.08.

Id. (citations omitted).

Based upon this analysis, Perkins held that trafficking in cocaine is not a forcible felony. Id.

In State v. Hearns, 961 So.2d 211 (Fla. 2007), the Florida Supreme Court reaffirmed its holding in Perkins, and extended the analysis to a similar catchall provision of the Violent Career Criminal (“VCC”) statute. In Hearns, the defendant was convicted of unlawful possession of a firearm by a convicted felon. The State sought an enhanced sentence under the VCC statute based upon defendant’s prior conviction for battery on a law enforcement officer. The VCC statute, like the forcible felony statute and the PRR statute, contains a list of enumerated offenses. Additionally, the VCC statute provides that “any forcible felony, as described in s. 776.08” is a qualifying offense under the statute. Thus the question facing the Court was whether battery on a law enforcement officer is a forcible felony; that is whether battery on a law enforcement officer is a felony that involves the use or threat of force or physical violence against any individual.

The Florida Supreme Court answered the question in the negative, holding that, “in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular circumstances involved.” Id. at 212. In doing so, the Court addressed the analysis of the district court:

The [district] court began its analysis by reviewing the elements of the BOLEO [Battery On Law Enforcement Officer] statute. It noted that BOLEO may be committed either by intentionally touching a law enforcement officer against his will, or by intentionally causing a law enforcement officer bodily harm. The court held that when BOLEO is committed by intentionally touching a law enforcement officer, it does not involve the use or threat of physical force or violence. Under Perkins, that is the end of the analysis. By determining that physical force or violence is not a necessary element of BOLEO, the district court determined that BOLEO is not a forcible felony under the VCC statute.

Id. at 216.

The Florida Supreme Court approved this analysis, but held that the district court erred in going further and determining that, if the State could establish that the defendant’s BOLEO conviction was based upon proof that he caused bodily harm, the conviction could be used as a qualifying forcible felony under the VCC statute. The Florida Supreme Court rejected this fact-based analysis; instead, the determination must be made by application of a “statutory elements test”, which is limited to reviewing only the statutory elements of the offense, and assessing whether the elements necessarily require proof of the use or threat of physical force or violence. We may not look to the proof at trial, or consider the factual circumstances of the individual case. The Florida Supreme Court then reviewed the relevant statutory elements of BOLEO, which may be proven in one of three ways:

1)actually and intentionally touching a law enforcement officer against his will; or
2) actually and intentionally striking a law enforcement officer against his will; or
3) intentionally causing bodily harm to a law enforcement officer.

The Florida Supreme Court determined that a mere touching of a law enforcement officer does not involve the use or threat of physical force or violence, and concluded that, because BOLEO may be established in this way, the offense of BOLEO does not necessarily involve the use or threat of physical force or violence, and is therefore not a forcible felony. See also, Acosta v. State, 982 So.2d 87 (Fla. 3d DCA 2008).

Applying the statutory elements test of Perkins and Hearns to the offense in this case leads to the same conclusion. Because the statutory elements of burglary with an assault or battery require the State to prove either an assault or a battery and (as discussed above) because one of the alternative elements of a battery is an intentional touching, the instant offense does not necessarily require proof of the use or threat of physical force or violence. The standard jury instruction for burglary of a conveyance with an assault or battery provides in pertinent part:

To prove the crime of Burglary, the State must prove the following elements beyond a reasonable doubt:
1. Defendant entered a conveyance owned by or in the possession of (person alleged).
2. At the time of entering the conveyance, defendant had the intent to commit an offense in that conveyance.
With an assault.
If you find defendant guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, defendant assaulted any person. An assault is an intentional and unlawful threat, either by word or act, to do violence to another, at a time when the defendant appeared to have the ability to carry out the threat and his act created a well-founded fear in the other person that the violence was about to take place.
With a battery.
If you find defendant guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the. burglary, defendant battered any person. A battery is an actual and intentional touching or striking of another person against that person’s will or the intentional causing of bodily harm to another person.

Fla. Std. J. Inst. (Crim.) 13.1. (Emphasis supplied).

Because Santiago was charged with and convicted of burglary of a conveyance with an assault or battery, the statutory elements of the crime did not necessarily require proof of the use or threat of use of physical force or violence. In other words, because this statutory offense can be established by proof of a mere touching, the offense cannot qualify as a predicate offense under the catchall provision of section 775.082(9)(a)l.o, Florida Statutes (2009).

Hearns has been applied by the Fourth District in Gorham v. State, 988 So.2d 152 (Fla. 4th DCA 2008), and Tumblin v. State, 965 So.2d 354 (Fla. 4th DCA 2007) to reverse PRR sentences imposed upon a conviction for burglary of a conveyance with an assault or battery. We agree with the reasoning in those cases.

The State urges us to follow the Fifth District’s decision in Shaw v. State, 26 So.3d 51 (Fla. 5th DCA 2009). That case, however, is distinguishable. In Shaw, the defendant was convicted of burglary of a conveyance with an assault. Thus, Shaw’s offense did not include, as a statutory element, a mere touching. Rather, the statutory elements required the State to prove an assault, which necessarily requires proof of “an intentional and unlawful threat, either by word or act, to do violence to another .... ” Fla. Std. J. Inst. (Crim.) 13.1. (Emphasis added).

In the instant case, by contrast, the offense as charged (burglary with an assault or battery) includes the element of a battery which can be proven by a mere touching.

We vacate the sentence imposed and remand this cause to the trial court for a new sentencing consistent with this opinion. The defendant shall be present at the new sentencing.

      .Under section 776.041(1), Florida Statutes (1987), the defense of self-defense is not available to a person who is “attempting to commit, committing or escaping after the commission of a forcible felony....”

      . This is the exact same language found in section 775.082(9)(a)l.o of the PRR statute.

      . § 775.084, Fla. Stat. (2000).

      . See also Johnson v. State, 858 So.2d 1071 (Fla. 3d DCA 2003) (holding mere spitting on police officer can constitute battery on a law enforcement officer but is not an offense that involves the use or threat of physical force or violence and is thus not a forcible felony under the VCC statute).

      . It is unclear from the opinion whether Shaw was formally charged with burglary with an assault or was charged with burglary with an assault or battery (but found guilty only of burglary with an assault). Neither Perkins nor Hearns addressed whether a charging document, specifically tailored to allege that the defendant committed a burglary with an assault (and omitting the alternative offense of battery) would satisfy the statutory elements test and meet the definition of a forcible felony. We leave this question for another day.

      .The irony of this analysis is not lost upon us. It may well be that a charge of burglary with an assault (which requires proof of unlawful threat to do violence to another) can qualify under the PRR statute, while a charge of burglary with an assault or battery cannot qualify under the PRR statute. See Shaw, 26 So.3d at 53; State v. Hackley,-So.3d-, 2010 WL 4273625 (Fla. 1st DCA 2010). However, given the clear dictate of Perkins and Hearns, if such an anomaly exists, the remedy lies with the Legislature, not this Court.


author: DAMOORGIAN, J.

text:
    STATE of Florida, Appellant, v. William HOLLAND, Appellee.
    No. 4D10-2415.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Michael A. Cohen of Essen, Essen, Charnota & Cohen, P.A., Hollywood, for appellee.
   DAMOORGIAN, J.

The State timely appeals a non-final order granting William Holland’s motion to suppress a videotape arising from a DUI investigation. We reverse.

By way of background, Holland was stopped by a deputy from the Broward Sheriffs Office (“BSO”) on suspicion of driving under the influence of drugs or alcohol. After the initial stop, BSO Deputy Grady was called to the scene to perform field sobriety exercises on Holland. He requested Holland undergo a breath test. The interaction between Grady and Holland was recorded by video camera. In particular, the videotape showed Holland’s refusal to submit to breath testing, the field sobriety exercises administered by Grady, and the conversations between Grady and Holland during the course of the investigation.

Before Holland’s trial, the State announced that it did not intend to call Grady as a witness, prompting Holland to move to suppress all of Grady’s involvement in the investigation. This included the entire contents of the videotape. Holland argued that the State’s decision not to call Grady would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution, citing to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

An evidentiary hearing was held on the motion. The State called the deputy who conducted the initial traffic stop to authenticate the videotape. When asked if Grady was videotaping the field sobriety exercises, the deputy who conducted the initial stop responded, “Most likely, yes.” Pursuant to BSO’s normal protocol, a video camera would have been placed in Grady’s car facing out. The camera would be used to record the field sobriety exercises Grady conducted. The witness also testified that in the normal course of business, the videotape would have been kept in a safe place at BSO’s offices.

The State’s witness further testified that she observed Holland performing the field sobriety exercises on the night in question; however, her main focus was on completing her report. She could not hear what was being said between Grady and Holland. Although the witness had not seen the videotape, she would be able to identify Holland as the person on the videotape and would be able to recognize if there were any substantial deviations from the normal field sobriety exercises. Moreover, she testified that if allowed to view the videotape, she would be able to determine whether it had been altered based on her observations that night. Finally, she admitted that she did not have an independent recollection of which exercises were performed, but the probable cause affidavit could refresh her recollection.

At the conclusion of the hearing, the State argued that its decision not to call Grady would not run afoul of the Confrontation Clause under Crawford because the videotape was not hearsay. Alternatively, even assuming it was hearsay, the State argued that the videotape was nontestimo-nial and, therefore, its introduction would not violate the Confrontation Clause.

The trial court granted the motion to suppress, concluding that the videotape and any statements made to or by Grady were prepared for use in a criminal prosecution and testimonial. This appeal follows.

A trial court’s decision on a motion to suppress requires a mixed standard of review. “An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence.” Ferguson v. State, 58 So.3d 360, 363 (Fla. 4th DCA 2011) (citation omitted). However, a de novo standard applies “to the mixed questions of law and fact that ultimately determine constitutional issues.” Id. (citation omitted).

First, Holland’s refusal to submit to sobriety testing is admissible. This issue has been resolved by the Legislature’s enactment of the implied consent law under section 316.1932(l)(a)l.a., Florida Statutes (2010). Section 316.1932(l)(a)l.a. provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(l)(a)l.a., Fla. Stat. (2010); see also State v. Kline, 764 So.2d 716, 717 (Fla. 5th DCA 2000) (holding that implied consent law requires admission of a defendant’s refusal to submit to a breath or urine test). We look no further than the legislative directive to conclude that the segment of the videotape showing Holland’s refusal is admissible under section 316.1932(l)(a)l.a. Furthermore, Holland’s statements on the videotape constitute admissions of a party opponent. See § 90.803(18)(a), Fla. Stat. (2010) (providing an exception to the hearsay rule when a statement is offered against a party and is “[t]he party’s own statement in either an individual or a representative capacity.”). Therefore, under section 90.803(18)(a), the statements are admissible. See Dias v. State, 890 So.2d 1254, 1255 (Fla. 4th DCA 2005); cf. United States v. Valdes, 214 Fed.Appx. 948, 950 (11th Cir.2007) (“Statements made by [the defendant] in tape-recorded conversations [with an informant], when presented by the Government, were not hearsay because they were admissions of a party opponent.”).

Next, we address whether the introduction of the balance of the videotape would violate the Confrontation Clause under Crawford. In Crawford, the Supreme Court held that the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354.

We hold that Grady’s statements on the videotape were non-hearsay verbal acts. A verbal act is defined as “an utterance of an operative fact that gives rise to legal consequences.” Banks v. State, 790 So.2d 1094, 1097 (Fla.2001). Verbal acts are not hearsay because they are admitted to show they were actually made and not to prove the truth of what was asserted therein. Id. at 1097-98.

Here, Grady’s directives on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to Holland’s otherwise ambiguous acts. See Longval v. State, 914 So.2d 1098, 1102 (Fla. 4th DCA 2005) (noting that witness testimony describing the conversation on a surveillance video in evidence was admissible over hearsay objection because it described and gave significance to the ambiguous conduct on the videotape); see also Stotler v. State, 884 So.2d 940, 944 (Fla. 4th DCA 2003) (holding that words that explain or give meaning to otherwise ambiguous acts are not hearsay). The State is correct that Holland’s reactions on the videotape would be meaningless without having the benefit of Grady’s statements prompting Holland’s reactions.

Having concluded that the statements on the videotape are not hearsay, the constitutional concerns raised in Crawford regarding testimonial statements are not implicated. See Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (explaining that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). Our decision is further supported by Kurecka v. State, 67 So.3d 1052, 1055 (Fla. 4th DCA 2010) where we determined that the results of a breath test are physical evidence, and are nontestimonial. Id. In doing so, we cited with approval the Fifth District’s decision in State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995). In Bums, the Fifth District held that a defendant’s refusal to submit to a breath test is admissible because administering a breath test and having a defendant perform a field sobriety task on videotape are “nothing more than the collection and preservation of physical evidence ... and do not constitute a crucial confrontation requiring the presence of defense counsel.” Id. at 848. Similarly, the Third District has determined that roadside tests of a driver’s physical coordination generate nontestimonial responses. State v. Whe-lan, 728 So.2d 807, 810 (Fla. 3d DCA 1999).

Finally, we turn to whether the videotape was properly authenticated through the testimony of the deputy who conducted the initial traffic stop. Because the trial court held that the videotape was inadmissible under Crawford, the court never determined whether the State properly authenticated the videotape under section 90.901, Florida Statutes (2010) (“Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”).

Accordingly, on remand, the State shall be required to properly authenticate the videotape as a condition precedent to its introduction.

Reversed.

WARNER and GERBER, JJ., concur.

      . "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI.


author: LEVINE, J.

text:
    Candy Lynn RODRIGUEZ, Appellant, v. Louis SANTANA, Appellee.
    No. 4D11-1856.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Bruce C. Baillie, Stuart, for appellant.
    No appearance for appellee.
   LEVINE, J.

The issue presented in this case is whether the trial court erred in expanding the scope of a noticed case management hearing into a final hearing on appellee’s petition to determine paternity. Appellant, the mother, claims that she did not receive proper notice that a final hearing on appellee’s petition was going to proceed instead of the case management conference which had been noticed. We agree and find that the trial court erred.

Appellee filed a petition to determine paternity and to award him parental responsibility and custody. The court sent a notice of a case management conference to the mother at an address she had previously provided. The postal service returned the notice as “Not Deliverable as Addressed — Unable to Forward.”

After the case management conference, the trial court rendered a final judgment of paternity, parental responsibility, child access and support. The trial court noted that appellant was not present, and that the notice had been returned as undeliverable.

The trial court found appellee to be the natural and biological father of the child. The court granted appellee sole parental responsibility. The court ordered appellant to pay $1,251 a month in child support, as well as be responsible for 84% of the child’s medical expenses.

Appellant filed a motion for relief from final judgment pursuant to rule 1.540(b)(4), claiming that the judgment should be vacated as void since the trial court violated her due process rights. The trial court denied appellant’s motion for relief and this appeal ensued.

We review the trial court’s denial of the motion for relief from judgment for abuse of discretion. Sehuman v. Int’l Consumer Corp., 50 So.3d 75 (Fla. 4th DCA 2010). Florida Rule of Civil Procedure 1.540(b)(4) provides: “On motion and upon such terms as are just, the court may relieve a party ... from a final judgment” where “the judgment or decree is void.” As this court has explained:

A judgment is void if, in the proceedings leading up to the judgment, there is “[a] violation of the due process guarantee of notice and an opportunity to be heard.... Generally, due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered.”

Shiver v. Wharton, 9 So.3d 687, 690 (Fla. 4th DCA 2009) (quoting Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006)).

We find that the trial court erred in denying the motion for relief from judgment, since the trial court improperly conducted a final evidentiary hearing when only a case management conference had been scheduled. A trial court violates a party’s due process rights “when it expands the scope of a hearing to address and determine matters not noticed for hearing.” Margulies v. Margulies, 528 So.2d 957, 959 (Fla. 3d DCA 1988).

In Illanes v. Gutierrez, 972 So.2d 222 (Fla. 3d DCA 2007), the trial court modified visitation after a noticed case management conference. The appellate court granted a petition for writ of certiorari and quashed the order modifying visitation because “there was no notice in the case management order that visitation would be discussed or a modification considered at the case management hearing.” Id. at 223. “Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.” Id. (citation omitted). Similarly, in the present ease, the parties were not noticed nor were the issues relating to the final hearing properly presented, and as such, appellant’s due process rights were violated.

In conclusion, we find the trial court erred in summarily denying appellant’s motion. The trial court denied appellant’s due process rights by proceeding with the evidentiary hearing after notifying appellant only of a case management conference. We thus reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

TAYLOR and GERBER, JJ., concur.

      . Appellant also objects to the portion of the final judgment awarding appellee child support even though appellee did not request such relief in his petition. We agree this was in error. "A trial court lacks jurisdiction to enter any judgment on an issue not raised by the pleadings.” Newberry v. Newberry, 831 So.2d 749, 751 (Fla. 5th DCA 2002).


author: STEVENSON, J.

text:
    SUNTRUST BANK, Appellant, v. Dr. Marc PULEO, M.D., and Jeffrey D. Puleo, individually and as Co-Personal Representatives of the Estate of Susan Puleo; James B. Hayes, Esq., and James B. Hayes, P.A., Appellees.
    No. 4D10-4768.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Carolyn B. Brombacher and William C. Davell of May, Meacham & Davell, P.A., Fort Lauderdale, for appellant.
    Andrew R. Herron of Herron Jacobs Ortiz, Miami, for appellees Dr. Marc Pu-leo, M.D., and Jeffrey D. Puleo.
   STEVENSON, J.

SunTrust Bank (“SunTrust”) appeals the trial court’s order granting the appel-lees/garnishors’ rule 1.540(b)(3) motion to vacate a final judgment of garnishment based on alleged misrepresentations in SunTrust’s answer to the writ. Because the order was issued without holding an evidentiary hearing, we reverse.

This appeal stems from a final judgment upon default, in the amount of $1,792,558.75, entered against James B. Hayes, Esq. and James B. Hayes, P.A. (collectively “Hayes”), in favor of the ap-pellees, Dr. Marc Puleo and Jeffrey D. Puleo, individually and as Co-Personal Representatives of the Estate of Susan Puleo (collectively “Garnishors”). On the same day that the final judgment was entered, Garnishors issued a writ of garnishment after judgment that was served on SunTrust, as garnishee. SunTrust served an answer on December 10, 2009. Based on this answer, Garnishors filed a motion for final judgment of garnishment upon confession by SunTrust. The trial court entered a final judgment of garnishment against SunTrust, in the amount of $196,780.61.

On August 19, 2010, Garnishors filed their Florida Rule of Civil Procedure 1.540(b)(3) motion to vacate final judgment of garnishment. The motion alleged that SunTrust concealed monies subject to garnishment in its answer, misrepresented material facts and failed to immediately place a hold on one of Hayes’ accounts. Garnishors alleged SunTrust failed to disclose that three days after it was served with the writ, a wire transfer occurred from Hayes’ account at SunTrust to a Wa-chovia account held in the name of “James B. Hayes, P.A.” and two checks were cashed by James B. Hayes. Garnishors attached numerous documents to their motion, including a “Funds Transfer Authorization” sheet reflecting a wire transfer in the amount of $145,000, copies of two checks cashed by James B. Hayes, e-mails relating to activity on the Hayes’ account and an affidavit from Garnishors’ attorney. SunTrust filed a response in which it argued that Garnishors waived the right to challenge the answer; that SunTrust did not intentionally misrepresent any information; that SunTrust timely placed a hold on Hayes’ account; and that the wire transfer did not occur on the date alleged by Garnishors. SunTrust also provided an affidavit from its in-house counsel who attested that no misrepresentations were made.

A brief hearing was held on Gar-nishors’ motion. However, the parties presented no evidence, though SunTrust requested additional time to do so. The trial court denied the request and granted the motion to vacate. A trial court’s determination on a motion for relief from judgment is reviewed for an abuse of discretion. See Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010). “If the allegations in the moving party’s motion for relief from judgment ‘raise a colorable entitlement to rule 1.540(b)(3)’s relief, a formal evidentia-ry hearing on the motion, as well as permissible discovery prior to the hearing, is required.’ ” Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996) (quoting S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986)).

Garnishors’ motion raised a color-able claim that SunTrust misrepresented information. However, SunTrust denied any wrongdoing and challenged Garnish-ors’ representation of the facts. Thus, an evidentiary hearing was necessary. See Novastar Mortg., Inc. v. Bucknor, 69 So.3d 959, 960 (Fla. 2d DCA 2011) (holding that trial court erred in granting rule 1.540(b)(3) motion to vacate without holding evidentiary hearing where allegations supported granting motion, but opposing party presented conflicting affidavit); see also Avi-Isaac v. Wells Fargo Bank, N.A., 59 So.3d 174, 177 (Fla. 2d DCA 2011) (reversing trial court’s order granting rule 1.540(b) motion to vacate because trial court failed to hold evidentiary hearing and denied opposing party meaningful opportunity to be heard).

Reversed.

MAY, C.J., and CIKLIN, J., concur.


text:
    ROSAIDA HEALTH CARE, INC., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Melva A. Argumedo, Appellees.
    No. 4D10-1731.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Leslie W. Langbein and Evan J. Lang-bein of Langbein & Langbein, P.A., Miami Lakes, for appellant.
    Louis A. Gutierrez, Tallahassee, for ap-pellee Unemployment Appeals Commission.
   PER CURIAM.

The issue presented in this appeal is whether appellant’s due process rights were violated in proceedings before an appeals referee of the Agency for Workforce Innovation (“AWI”). The referee determined that appellee Melva Argumedo was appellant’s employee, and thus was entitled to receive unemployment compensation. The Unemployment Appeals Commission affirmed the referee’s decision. We now reverse and remand.

After appellant challenged appellee’s claim for unemployment compensation benefits, the matter was submitted to the Department of Revenue (“DOR”) for a determination. DOR initially determined that appellee was appellant’s employee rather than an independent contractor. Appellant then submitted an independent contractor agreement and a tax exempt form signed by appellee, as well as appellant’s “independent contractor analysis questionnaire” (“UCS-6061”).

DOR reversed its determination, stating in its notes, “Based on answers on their UCS-6061, and wording of contract, redetermined that the claimant was an independent contractor.” Appellee appealed to an AWI referee. Despite basing its rede-termination of appellee’s employment status on the independent contractor agreement, tax exempt form, and UCS-6061, DOR did not include these documents in the record it submitted to the referee. The record did include DOR’s notes indicating the existence of the three documents.

After a telephone hearing where both parties appeared without counsel, the referee issued a written decision determining that appellee was appellant’s employee. At the hearing, the referee admonished appellant for not submitting copies of the independent contractor agreement signed by appellee. Appellant’s representative responded, “I really should do it and I am not trying to justify my actions ... and I didn’t do it. If I still had time I would (inaudible).”

“Pursuant to Sections 443.171(5) and 443.1715, F.S., [DOR] will provide to the Special Deputy and to each party documents and official records in its possession regarding the case.” Fla. Admin.Code R. 60BB-2.035(9) (2006). In the present case, DOR failed to provide the referee with all documents in its possession. See Lopez v. A Aaron Super Rooter, Inc., 54 So.3d 575, 576-77 (Fla. 3d DCA 2011) (Salter, J., concurring) (expressing “concern about the manner in which the [AWI] provides record materials — or perhaps does not provide them — to the parties when an employee or employer appeals an adverse administrative determination” to a referee).

In addition, the referee in this case noted three times in her decision that “[t]here was no contract” between the parties. Given her knowledge that DOR had deemed appellee an independent contractor based on a contract, we find the referee’s description of the facts plainly inaccurate. Further, on these particular facts, in light of the referee’s awareness of the independent contractor agreement, we find that the referee abused her discretion when she refused to allow appellant to provide the agreement when appellant stated it would do so if it “still had time.” See generally Gonzalez v. UAC, — So.3d -, 2010 WL 4103359 (Fla. 3d DCA 2010) (“[t]he Agency and FUAC, no less than this Court, should strive for determinations on the merits when no prejudice has occurred”).

On the specific facts of this case, we find that “the fairness of the proceedings ... may have been impaired by a material error in procedure.” § 120.68(7)(c), Fla. Stat. (2009). We express no opinion at this time as to the other issue raised on appeal.

Reversed and remanded for further agency proceedings consistent with this opinion.

TAYLOR, GERBER and LEVINE, JJ„ concur.

      . DOR may provide an initial administrative determination of entitlement to benefits pursuant to interagency agreement. § 443.1316, Fla. Stat. (2009); Fla. Admin. Code R. 60BB-2.035(1) (2006).

      . We are mindful of the Notice of Telephone Hearing and accompanying AWI Form UCA Bulletin that is provided to the parties when an employer or employee appeals an initial agency determination. The bulletin informs the parties that "copies of all documents available to the referee are enclosed with the Notice of Telephone Hearing ” and that they should submit to the referee copies of documents they wish to have considered before the hearing date if those documents are not included with the hearing notice. However, based on the particular facts of this case, we do not consider the language contained in the hearing notice and bulletin dispositive.


author: WOLF, J.

text:
    Mack H. SULLIVAN, Jr., Appellant, v. Emily HOFF-SULLIVAN, Appellee.
    No. 1D11-1056.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2011.
    Rehearing Denied Jan. 12, 2012.
    Mack H. Sullivan, Jr., pro se, Appellant.
    Corrine A. Bylund of Zisser, Robison, Brown, Nowlis, Maciejewski & Cabrey, P.A., for Appellee.
   WOLF, J.

We affirm the trial court’s findings of contempt and the award of attorney’s fees. The other issues raised by appellant challenging the award of child support were rendered moot by the trial court’s Order on Status Conference, entered on June 1, 2011.

AFFIRMED.

LEWIS and WETHERELL, JJ., concur.


author: CLARK, J.

text:
    Derrick D. COLSON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Musgrove Construction, Inc., Appellee.
    No. 1D11-1292.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2011.
    Derrick D. Colson, pro se, Appellant.
    Louis A. Gutierrez, Senior Attorney, Florida Unemployment Appeals Commission, Tallahassee, for Appellee.
   CLARK, J.

Derrick Colson appeals the final agency action by the Florida Unemployment Appeals Commission (“UAC”) dismissing his untimely appeal to the Commission. Because Appellant has failed to establish any of the statutory grounds upon which the agency’s final order could be set aside, under section 120.68(7), Florida Statutes, the final order is affirmed.

The appeal in this case stemmed from Unemployment Compensation proceedings upon Mr. Colson’s claim for unemployment benefits after his employment with Mus-grove Construction company was terminated. The Commission assigned an appeals referee and mailed notice of the telephone hearing to Mr. Colson at his last known address. Because Mr. Colson was incarcerated for criminal offenses at the time the notice was mailed, he did not receive the notice or appear at the telephone hearing. Likewise, although the notice of the referee’s decision was mailed to Mr. Col-son’s last known address in December, 2009, he did not receive this notification due to his incarceration at that time.

Mr. Colson filed his appeal with the Commission on January 4, 2011, over twelve months after the referee’s decision was rendered. In response to the Commission’s order to show cause why his appeal should not be dismissed as untimely, Mr. Colson explained that he had been incarcerated during the pertinent times and thus had not received the notices or timely filed his appeal. The Commission ultimately dismissed Colson’s appeal due to its untimely filing.

On appeal, Mr. Colson argues that the Commission’s final order must be set aside based upon fairness and due process, because he was deprived of his right to appear at the referee’s hearing and deprived of notice of the referee’s decision. He asserts that the untimeliness of his appeal to the UAC must be excused due to his incarceration.

The Commission correctly points out that section 443.151(3)(c), Florida Statutes, clearly provides for the 20-day deadline to appeal, and the Legislature did not provide for any “good cause” to excuse late filing in subsection (3)(c). See Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002) (and cases cited therein). Rule 60BB-5.007, Florida Administrative Code, upon which the Appeals Referee relied, requires dismissal of late-filed appeals with no exceptions. However, in 2005, section 443.151(4)(b)3., Florida Statutes was created to allow the Office of Appeals to order a claimant to show cause why a late-filed appeal should not be dismissed and to give the claimant an opportunity to provide written evidence of timely filing or “good cause for failure to appeal timely.” Ch.2005-209, § 7, Laws of Fla. (emphasis added). This “good cause” amendment to section 443.151(4)(b)3. codifies previous case precedent requiring the agency, on a case-by-case basis, to consider the facts surrounding late-filed appeals when appellants challenge their timely receipt of notice from the Commission or other situations where the Commission might have contributed to the delay in the claimant’s filing of the appeal. See Ortolano v. Unemployment Appeals Comm’n., 33 So.2d 823 (Fla. 5th DCA 2010); Pollett v. Fla. Unemployment Appeals Comm’n., 928 So.2d 469 (Fla. 1st DCA 2006); Applegate v. Nat’l Health Care Affiliates, 667 So.2d 332 (Fla. 1st DCA 1995). Thus, the statute now contains an avenue for a claimant to assert good cause for a late-filed appeal during the administrative proceedings.

In this case, the Commission did issue its order to show cause to Mr. Col-son, affording him the opportunity to explain the reason for his late-filed appeal. However, unlike the cases where courts have found that appellants sufficiently raised a fact question about the Commission’s possible contribution to the untimeliness of the appeal, Appellant’s response to the Commission’s order to show cause was insufficient to support any such fact question. Mr. Colson’s inability to receive mail at the address on file with the Commission had nothing to do with any action or omission by the Commission, but was due to his incarceration on criminal charges unrelated to his former employment or his administrative proceedings regarding Unemployment Compensation.

Appellant has shown no deviation from procedure by the Commission in this case. He received the procedural process he was due. There is no statutory requirement that the Commission conduct a diligent search for a claimant’s current address. Both sections 443.151(8)(b) and 443.151(8)(c), Florida Statutes, provide that determinations by an appeals referee become final “20 days after the mailing of the notices to the parties’ last known addresses.” Rule 60BB-6.003(1), Florida Rules of Administrative Procedure, contains this same language — “mailing of notice of the appeals referee’s decision to the parties at their last known addresses.” Rule 60BB-5.025, Florida Administrative Code, requires the referee’s decision to be “mailed to the address of record of each of the parties.”

Because it is the claimant who initiates Unemployment Compensation proceedings by filing a claim for unemployment benefits, it is incumbent upon the claimant to keep the agency apprised of his or her current address. Given the limited and exceptional nature of the “good cause” cases where untimely appeals have been excused, the claimant’s change of address due to his incarceration for criminal offenses, which he did not report to the agency in order to keep his address of record current, does not constitute good cause to allow a late-filed appeal to the UAC.

Accordingly, the fairness of these proceedings was not impaired by any material error in procedure by the Commission, or by the appeals referee. See § 120.68(7)(c), Fla. Stat. Because the Commission acted within its jurisdiction and authority, complied with the statutes applicable to Unemployment Compensation and administrative procedures, and because Appellant has not established on appeal any of the grounds, under section 120.68(7), Florida Statutes, upon which the Commission’s final order might be set aside, the Commission’s final order is AFFIRMED.

HAWKES and SWANSON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Terry Michael ZAMBUTO, Appellant, v. Lisa Marie ZAMBUTO, Appellee.
    No. 2D10-2231.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 2011.

      Elizabeth A. Wolt of Wolt & Associates, P.A., Fort Myers, for Appellant.
    Charles T. Boyle of Farr, Farr, Eme-rich, Hackett & Carr, P.A., Punta Gorda, for Appellee.
   NORTHCUTT, Judge.

Terry Zambuto challenges 'the alimony award and equitable distribution scheme prescribed in the judgment dissolving his marriage to Lisa Zambuto. We agree with his arguments in part, and we reverse for the trial court to make certain adjustments.

During the marriage, Mr. Zambuto earned a substantial income and Mrs. Zambuto stayed at home with three children. Mrs. Zambuto’s evidence established a level of need that resulted in a significant award of alimony. Mr. Zambu-to has not demonstrated an abuse of discretion in the trial court’s alimony award generally; the evidence supported the court’s findings regarding Mr. Zambuto’s income and Mrs. Zambuto’s financial needs. See, e.g., Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). But Mr. Zam-buto has shown error in the court’s failure to account for Mrs. Zambuto’s earning capacity, which would reduce the amount of alimony necessary to meet her needs.

In calculating alimony, the court may attribute to a party an earning capacity that is supported by the evidence. LaFlam v. LaFlam, 854 So.2d 809, 810 (Fla. 2d DCA 2003). Here, the testimony showed that Mrs. Zambuto has a college degree, was licensed as a certified nurse assistant, and operated a small home-based business. Mrs. Zambuto acknowledged that she could return to work full-time, and Mr. Zambuto presented a vocational expert who testified about Mrs. Zambuto’s earning ability and about various programs that would enable her to reenter the workforce. The court announced its intention to make an award of rehabilitative alimony and to charge Mrs. Zambuto with earnings based on a forty-hour work week. But the final judgment is silent on both points. This may have resulted from the parties’ indication to the court that they would provide it with updated information about a rehabilitation plan. Our record does not disclose what later transpired in that regard. Regardless, we reverse and remand for the court to address this issue, with leave to take additional evidence if necessary. See Nicholas v. Nicholas, 870 So.2d 245, 248 (Fla. 2d DCA 2004) (noting that remand for additional evidence “is appropriate in order to cure a deficiency that was not attributable to the trial judge, but to one or both of the parties” (citing Batson v. Batson, 821 So.2d 1141, 1143 (Fla. 5th DCA 2002) (Peterson, J., concurring))).

We also reverse a portion of the equitable distribution. The trial court assigned $90,000 to Mr. Zambuto for money he had spent during the marriage. This figure represented gambling losses over the last two years of the marriage. It is error to distribute dissipated funds to a party in the absence of misconduct. See Belford v. Belford, 51 So.3d 1259, 1260 (Fla. 2d DCA 2011). “Misconduct is not shown by ‘mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves.’ ” Id. (quoting Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008)). “Rather, there must be a specific finding of intentional misconduct based on evidence showing that the marital funds were used for one party’s ‘own benefit and for a purpose unrelated to the marriage at. a time when the marriage is undergoing an irreconcilable breakdown.’ ” Id. (quoting Roth, 973 So.2d at 585).

Here, the gambling losses occurred while the marriage was intact, not while it was undergoing an irreconcilable breakdown. Mrs. Zambuto may well have disapproved of the extent of her husband’s gambling, but she also engaged in gambling activities. Moreover, Mr. Zambuto often gambled in the course of entertaining business clients, and as such the activity served a marital purpose. For these reasons, it was error to charge Mr. Zambuto’s share of the marital assets for the gambling losses. On remand, the court shall revisit the equitable distribution scheme and adjust it accordingly.

Reversed and remanded with directions.

DAVIS and BLACK, JJ., Concur.


text:
    George H. NUSSBAUM, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3004.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2011.
    George H. Nussbaum, Perry, 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 judgment and sentence in case no. 2009-CF-001284-A, in the Circuit Court in and for Citrus County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, EVANDER and JACOBUS JJ., concur.


text:
    Danny C. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3611.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2011.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Danny C. Taylor appeals his conviction and sentence for driving under the influence with two prior convictions, arguing error in the trial court’s handling of his pro se motion to withdraw plea after sentencing. As Taylor argues, and the State concedes, a hearing on a motion to withdraw plea is a critical stage of the proceeding at which a defendant has a constitutional right to counsel. Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002). The trial court conducted a hearing on the motion with Taylor unrepresented, and without offering him counsel. Accordingly, we reverse the denial of Taylor’s motion to withdraw plea and remand for a new hearing on the motion. Id.

REVERSED and REMANDED with directions.

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


author: SAWAYA, J.

text:
    Tracey ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1613.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2011.

      James S. Purdy, Public Defender, David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Tracey Roberts appeals his judgment and sentence for violation of community control, arguing that 1) he was found to have committed “the non-existent crime of violation of community control felony”; and 2) the trial judge failed to enter a written order of violation stating in writing the conditions that were violated. We note parenthetically that Roberts does not contend that he did not commit a willful and substantial violation of his community control.

Roberts was originally convicted of possession of a firearm by a delinquent in violation of section 790.23(l)(b), Florida Statutes (2009). He was placed on community control, which was subsequently revoked after he was found to be in violation. Judgment and sentence were rendered on April 15, 2011, regarding the violation. However, an amended judgment and sentence were subsequently entered on April 21, 2011, that included the original crime of possession of a firearm by a delinquent, but also indicated an adjudication of guilt for the third-degree felony of “Count 6 Violation of Community Control Felony.” There was no count six and the violation of community control was for a second-degree felony, not a third-degree felony. Clearly, some type of scrivener’s error occurred when the trial court rendered the amended judgment and sentence that must be corrected on remand. The State concedes this error and agrees that this case should be remanded to correct that error.

We agree with Roberts that the trial court failed to enter a written order stating the conditions he violated. This court has consistently held that the trial judge must specify, in the written order or judgment, which conditions of probation or community control have been violated. Bell v. State, 60 So.3d 558 (Fla. 5th DCA 2011); Mormon v. State, 976 So.2d 1188 (Fla. 5th DCA 2008); Brinson v. State, 866 So.2d 1268 (Fla. 5th DCA 2004); Barta v. State, 678 So.2d 923 (Fla. 5th DCA 1996). There is no written order in the instant case, and the judgment does not indicate which conditions were violated. The State agrees that the instant case should be remanded for the entry of a judgment specifying which conditions Roberts violated.

We, therefore, vacate the amended judgment under review and remand this case to the trial court to enter a proper judgment correcting the scrivener’s error and specifying which conditions Roberts violated.

AMENDED JUDGMENT VACATED; REMANDED with directions.

GRIFFIN and MONACO, JJ., concur.

      . Roberts was also convicted of improper exhibition of a deadly weapon or firearm and was sentenced to seventy days in jail on that charge. That conviction and sentence are not an issue in this appeal.


author: EVANDER, J.

text:
    Cleveland MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2543.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2011.
    Cleveland L. Monroe, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt and L. Charlene Matthews, Assistant Attorneys General, Daytona Beach, for Appellee.
   EVANDER, J.

Cleveland Monroe seeks review of the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse.

Monroe was convicted, after a jury trial, of (1) possession of cocaine with intent to sell within 1000 feet of a child care facility, and (2) sale of cocaine within 1000 feet of a child care facility. The evidence introduced at trial included testimony that Monroe’s alleged criminal actions occurred approximately 500 feet from Guardian Angels, a licensed child care facility.

In his motion for postconviction relief, Monroe claimed that trial counsel had been ineffective in failing to assert, as an affirmative defense, that there was no sign posted identifying Guardian Angels as a licensed child care facility. Section 893.13(l)(c), Florida Statutes (2009), makes it unlawful for any person to sell, or possess within intent to sell, a controlled substance in, on, or within 1000 feet of the real property comprising a child care facility. A subsequent section in that statute creates an exception:

This paragraph does not apply to a child care facility unless the owner or operator of the facility posts a sign that is not less than 2 square feet in size with a word legend identifying the facility as a licensed child care facility and that is posted on the property of the child care facility in a conspicuous place where the sign is reasonably visible to the public.

In summarily denying relief, the trial court held that Monroe’s claim was conclusively refuted by the record because trial counsel had moved, albeit unsuccessfully, for a judgment of acquittal based on the State’s alleged failure to present evidence that the child care facility did not have a sign indicating it as such. In denying Monroe’s motion for judgment of acquittal, the trial court accepted the State’s argument that the alleged lack of signage was a defense to be shown by the defendant, not an element of the offense required to be proven by the State. Accordingly, the denial of the motion for judgment of acquittal was not a determination of whether counsel had been ineffective in failing to raise the affirmative defense.

Because the trial court denied relief based on the erroneous conclusion that the claim made in Monroe’s postconviction motion had been raised (and ruled upon) at the original trial, we reverse. See, e.g., Hale v. State, 864 So.2d 1125 (Fla. 2d DCA 2003) (holding that affirmance of defendant’s drug conviction on direct appeal without written opinion did not serve as procedural bar to raising ineffective assistance claims in postconviction motion; direct appeal did not resolve issue as to whether trial counsel was ineffective for having failed to establish affirmative defense that no sign was posted identifying facility, within 1000 feet of which defendant allegedly delivered cocaine, as a child care facility). On remand, the trial court must either attach portions of the record that conclusively refute Monroe’s claim or conduct an evidentiary hearing and resolve it.

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

      . His convictions were per curiam affirmed by this court. See Monroe v. State, 59 So.3d 1153 (Fla. 5th DCA 2011).

      . Monroe raised several claims in his motion for postconviction relief; however, on appeal, he sought review only of the denial of his claim that trial counsel had been ineffective in asserting the "lack of a sign” defense.

      . The State’s argument finds support in State v. Robarge, 450 So.2d 855, 856 (Fla. 1984), State v. Thompson, 390 So.2d 715, 716 (Fla. 1980), State v. Buchman, 361 So.2d 692, 694 (Fla.1978), and Baeumel v. State, 26 Fla. 71, 7 So. 371, 372 (1890), where the Florida Supreme Court held that, as a general rule, if there is an exception within the enabling clause defining a crime, the State must prove the defendant is not within the exception; however, if the exception is in a subsequent clause or subsequent statute, it is a matter of defense to be shown by the defendant.


author: VAN NORTWICK, J.

text:
    James D. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1420.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.

      Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

James David Thompson challenges his judgment of conviction for manslaughter, attempted second degree murder, possession of a firearm by a convicted felon and shooting into an occupied dwelling. Because the trial court committed fundamental error in instructing the jury on the crime of attempted manslaughter and erred in admitting evidence of events on August 16, 2008, we reverse and remand for a new trial.

Appellant was charged with the second degree murder by firearm of Steven Weed, the attempted first degree murder by firearm of Lizia Hardy-Batt, possession of a firearm by a convicted felon, and shooting into an occupied dwelling. The events which led to the charges occurred on August 17, 2008, in Bay County. The record reflects that appellant previously had sold drugs to Weed and was visiting Weed’s neighbor when Weed called him over to the residence Weed shared with Hardy-Batt. A disagreement erupted between appellant and Weed, and Weed was shot in the head. Hardy-Batt was shot in the arm and would serve as the prosecution’s chief witness against appellant.

The trial court committed fundamental error when the jury was instructed that the crime of attempted manslaughter, one of the lesser included offenses of attempted first degree murder, required proof of an intent to kill. The trial court utilized the standard instruction with regard to count II relating to Hardy-Batt, but this standard instruction has been held to be erroneous. Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009). In Lamb, we held that it is fundamental error to give the standard jury instruction for attempted manslaughter by act because that instruction “adds the additional element that the defendant ‘committed an act intended to cause the death’ of the victim when attempted manslaughter by act requires only an intentional unlawful act.” Id.; see also Minnich v. State, — So.3d —, 2011 WL 265765 (Fla. 1st DCA 2011); Rushing v. State, — So.3d—, 2010 WL 2471903 (Fla. 1st DCA 2010); but see Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. pending, 64 So.3d 1262 (Fla.2011). Accordingly, on this ground, a new trial is required.

The trial court also erred in admitting evidence regarding events which occurred on Saturday, August 16, and during the early morning hours of August 17, 2008; activities which occurred prior to the shooting of Weed and Hardy-Batt. Prior to trial, the State advised by a second amended notice its intent to introduce “similar fact” evidence pursuant to section 90.404(2), Florida Statutes. More particularly, the State advised of its intent to introduce evidence that on the night of August 16th, appellant kidnapped Anthony Hubbard after Hubbard paid appellant with counterfeit money for drugs. The State also sought to introduce evidence of that drug sale as well as evidence that appellant pointed a gun at Hubbard. In its motion, the State claimed that the so-called similar fact evidence, also known as Williams rule evidence, was proper because background information detailing events before the commission of a charged crime is relevant to give the complete story of a crime; the State added that the evidence regarding the drug sale and kidnapping of Hubbard was inseparably linked in time and circumstance to the scenario of the charged crimes.

Evidence of other crimes which are inseparable from the crime charged or evidence which is inextricably intertwined with the crime charged, however, is not Williams rule evidence. Griffin v. State, 639 So.2d 966, 968 (Fla.1994); see Floyd v. State, 18 So.3d 432 (Fla.2009). Williams rule evidence is evidence of other conduct, which, pursuant to section 90.404(2)(a), Florida Statutes, is similar to the charged offense and is relevant to prove a material fact in issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Similar fact evidence of other crimes, wrongs or acts (i.e., Williams rule evidence) is inadmissible when the evidence is relevant solely to prove bad character or a defendant’s propensity to commit a crime. § 90.404(2)(a). Appellant’s participation in a drug transaction and then kidnapping was not “[sjimilar fact evidence” for purposes of section 90.404(2)(a), Florida Statutes, and thus should not have been admitted as such. See Bryan v. State, 533 So.2d 744, 746 (Fla.1988) (“The requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy.”).

Evidence of bad acts which are inextricably intertwined with the crime charged may be admissible under section 90.402, because such evidence is relevant and constitutes an inseparable part of the act which is at issue. Griffin, 639 So.2d at 968. “Where it is impossible to give a complete or intelligent account of the criminal episode without reference to other uncharged crimes or bad conduct, such evidence may be used to cast light on the primary crime or elements of the crime at issue.” Wright v. State, 19 So.3d 277, 292 (Fla.2009). Moreover, evidence of an inseparable crime is admissible “if the evidence is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s).” Ballard v. State, 66 So.3d 912, 918 (Fla.2011) (citing Dorsett v. State, 944 So.2d 1207 (Fla. 3d DCA 2006)). Like all evidence, evidence of matters inextricably intertwined with the charged offense is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. § 90.403, Fla. Stat.; LaMarca v. State, 785 So.2d 1209, 1212-13 (Fla.2001).

None of the Ballard factors were met in the case before us. The kidnapping of Hubbard was not relevant to the shooting of Weed and Hardy-Batt. Indeed, as Hubbard’s lengthy direct examination by the State indicated, Hubbard had no knowledge of Weed and Weed had nothing to do with the counterfeit purchase. Further, even if the drug transaction with Hubbard the night before the shooting was relevant, the evidence of the drug transaction utilizing counterfeit money was so extensive, it improperly became a feature of the trial. As the Florida Supreme Court explained in Wright v. State, 19 So.3d at 293, “[e]ven when inextricably intertwined, such evidence cannot become a feature of the trial.” The opinion of the Second District in Thomas v. State, 959 So.2d 427, 430 (Fla. 2d DCA 2007), is apropos:

even if it could be concluded that the events of [August 16] were more than minimally relevant, there was no justification for the volume of detailed evidence that was tendered to prove them. The State proceeded almost as if it had been successful in its attempt to consolidate the various charges against [appellant] for trial. As such, the collateral crime evidence improperly emphasized the events of [the evening of August 16] to the point that they became a feature of [appellant’s] trial.

Because a new trial is required by virtue of the erroneous jury instruction and the improper use of evidence of other bad acts, we do not reach the third issue raised on appeal regarding the alleged discovery violation.

REVERSED AND REMANDED.

PADOVANO and HAWKES, JJ„ concur.

      . Williams v. State, 110 So.2d 654, 662 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).


author: ROTHENBERG, J.

text:
    Jose Luis ESTELA, Appellant, v. Roberto CAVALCANTI, Appellee.
    No. 3D11-2208.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Arnaldo Velez, Coral Gables, for appellant.
    Jones & Adams, P.A., and W. Steven Adams, Miami, and Jorge Eduardo Porro, Jr., for appellee.

      Before WELLS, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, J.

José Luis Estela (“Estela”) appeals a non-final order denying his motion to quash service and to dismiss for lack of jurisdiction. We reverse and remand with directions to quash service of process.

After filing an amended complaint against three named defendants, including Estela, Roberto Cavalcanti (“Cavalcanti”) made several failed attempts to personally serve Estela at his last known address in Key Biscayne. In an effort to locate Estela, Cavalcanti ordered a skip trace, which revealed that Estela owned homesteaded property in Miami Beach. Cavalcanti attempted to serve Estela at the Miami Beach address, but his attempts were unsuccessful.

Thereafter, Cavalcanti filed a motion for leave to serve Estela by publication, and attached an affidavit of diligent search. Estela, who made a special appearance for the purpose of filing a motion to quash Cavalcanti’s attempt to serve him by publication, provided to Cavalcanti an address he claimed was his Costa Rican address. After conducting a hearing, the trial court granted Estela’s motion for leave to serve by publication.

For four consecutive weeks, Cavalcanti published a notice of action, in the Miami Daily Business Review, which required Estela to respond on or before June 21, 2011. On June 21, 2011, Estela filed a motion to quash the attempted service and to dismiss, and subsequently filed an amendment to the motion. Following a hearing, the trial court entered an order denying Estela’s motion. This appeal followed.

The issue presented is whether a plaintiff can serve a defendant by publication if the defendant provided, in his motion to quash the plaintiffs attempt to serve him by publication, an out-of-state address where the defendant may be personally served, and where the trial court has not made a finding that the defendant was attempting to evade service. The standard of review is de novo. Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA2007).

Section 49.021, Florida Statutes (2010), provides, in pertinent part: “Where personal service of process or, if appropriate, service of process under s. 48.194 cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown _” (emphasis added). The statute’s plain language mandates that serr vice of process by publication (provided the case is one of the kinds listed in section 49.011, Florida Statutes (2010)) is only permitted when personal service cannot be obtained. See Gross v. Fid. Sav. Bank of Fla., 579 So.2d 846, 847 (Fla. 4th DCA 1991). Statutes governing service of process, including section 49.021, are strictly construed. Id. Therefore, Cavalcanti was obligated to at least attempt to effectuate service on Estela at the Costa Rican address he provided before resorting to service by publication. Accordingly, the order appealed is reversed and the cause is remanded to the trial court to quash service of process.

Based on our ruling, we find it unnecessary to address whether the complaint is limited to in personam relief, or additionally involves in rem or quasi in rem claims. In addition, we find no merit to the claim that Estela filed a permissive counterclaim in the lower court, thereby waiving his challenge to personal jurisdiction.

Reversed and remanded with directions.


author: WARNER, J.

text:
    Peter Scott SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4360.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Philip J. Massa, Regional Counsel, and Randall Berman, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Convicted of an organized scheme to defraud, appellant Peter Scott Smith challenges the use of the “and/or” conjunction between his name and the name of his co-defendant in the jury instruction on the elements of the crime. He claims the court’s giving of the instruction was fundamental error, even though he requested that the court give it. We affirm, concluding not only that the argument was waived by appellant’s request, but also that given the totality of the circumstances the instruction was not fundamental error.

Appellant and his co-defendant were charged by amended information with committing organized fraud, in violation of section 817.034(4)(a)l., Florida Statutes (2001). The state alleged that, during a three-year period, appellant obtained over $50,000 from various victims, making the offense a first-degree felony.

The facts of this case are set forth in O’Keefe v. State, 47 So.3d 937, 938 (Fla. 4th DCA2010):

The evidence at trial showed that [John O’Keefe] owned and operated an investment company called Merit First. [O’Keefe] and ... co-defendant, Scott Smith, each sold investment opportunities to friends and acquaintances. The state called thirteen witnesses who each gave substantial sums of money to [O’Keefe] or Smith for investment purposes. Smith attracted investors, mostly from his church, to [O’Keefe’s] firm. Some investors dealt solely with [O’Keefe]; some dealt solely with Smith; and some dealt with both [O’Keefe] and Smith. The investors were usually given promissory notes, which were to be repaid within sixty-ninety days, and told that their funds would be used to finance shell corporations that would be sold to start-up companies seeking to go public. However, the investors were never repaid.
A state investigator testified that he had reviewed [O’Keefe’s] books and records and could find no investor money going into any investments at all, but he did find substantial amounts flowing to [O’Keefe] and his family and to Smith. Smith testified that before he joined [O’Keefe], he checked out his references, which seemed accurate. [Smith] began selling investments for [O’Keefe] who would continually tell Smith that he was on the brink of a sale of a shell corporation which would bring the return to investors. After about eighteen months, Smith stopped believing him. Smith claimed that he repaid some investment funds to one investor.

Smith testified at the joint trial and claimed that he was duped by O’Keefe as were the victims. He claimed that he did not know of O’Keefe’s fraud. Moreover, he claimed that he received very little, if any, money from O’Keefe.

Prior to closing argument, the parties agreed to jury instructions which provided that, as to the elements of the crime the state had to prove that: (1) O’Keefe and Smith engaged in a scheme to defraud; and (2) O’Keefe and Smith obtained property through the scheme to defraud. Id.

During closing argument, Smith’s attorney likened Smith to a mate on a boat of which O’Keefe was the captain, and Smith had no control. He argued, “[T]o find Mr. Scott Smith guilty in this case is to blame the mate because you didn’t catch your marlin that day.” He stressed the instruction on multiple defendants and that the jury must decide the case against each defendant on its own. Smith, he argued, did not commit any scheme to defraud or obtain any money as a result, other than commissions for selling the investments. He also directed the jury’s attention to the principals instruction, pointing out that the jury would have to find that Smith knew that O’Keefe was stealing the money of the investors and that Smith brought the investors there with the intent to get some of the money. The state did not present evidence of this to support Smith’s liability as a principal, he maintained. He ended by again reminding the jurors that they must decide the case against Smith independent of the case against O’Keefe. On rebuttal, the state attorney also told the jury that it must look at the evidence separately for O’Keefe and Smith.

After the closing arguments, the trial court questioned whether the jury instructions agreed on at the charge conference were correct. O’Keefe, 47 So.3d at 939. In particular, the court questioned whether the conjunction “and” should be placed between the names of the defendants in the instructions on the elements of the crime. Id. The prosecutor noted that the jury needed to make a determination as to each defendant separately, suggesting that the instruction “probably should be and/ or.” Id. Smith’s defense counsel agreed and specifically requested the change, stating: “Judge, consistent with 3.12B, I would ask that the instruction be changed to and/or. That would [be] more appropriate and legal.” Over the objection of co-defendant O’Keefe, the trial court changed the jury instruction from the “and” conjunction to the “and/or” conjunction, instructing the jury as follows:

To prove the crime of organized fraud, the State must prove the following two elements beyond a reasonable doubt:
1. JOHN MARTIN O’KEEFE, SR. and/or PETER SCOTT SMITH engaged in a scheme to defraud.
2. JOHN MARTIN O’KEEFE, SR. and/or PETER SCOTT SMITH obtained property through the scheme to defraud.

Id. Additionally, the trial court gave the standard instruction on multiple defendants, as well as the standard instruction on the law of principals. Separate verdict forms were submitted to the jury for each co-defendant. The jury found Smith guilty as charged, and the trial court convicted and sentenced Smith, prompting this appeal.

Smith argues on appeal that the court committed fundamental error in using the “and/or” conjunction in instructing the jury on the elements of the crime. He contends that the “and/or” instruction told the jury that proof applicable to O’Keefe’s scheme to defraud supplied the proof necessary against Smith on this element, thus negating his defense that he lacked any criminal intent.

The specific issue of whether “and/or” was appropriate was extensively discussed between the court and the attorneys, and Smith asked for the instruction that he now claims negated his entire defense, while O’Keefe’s attorney objected to the instruction. Where the defendant asks for the instruction that he claims on appeal was erroneous, he cannot raise its error on appeal. See Fulcher v. State, 766 So.2d 243, 245 (Fla. 4th DCA 2000); Weber v. State, 602 So.2d 1316, 1319 (Fla. 5th DCA 1992). To do so “would reduce the criminal justice system to a game of ‘check’ and ‘checkmate’ or ‘heads I win, tails you lose.’ ” Weber, 602 So.2d at 1318-19. The supreme court held in Ray v. State, 403 So.2d 956, 961 (Fla.1981), that it is not fundamental error to convict a defendant on an erroneous instruction where the defendant’s counsel requested the charge. Although the case dealt with a lesser in-eluded instruction, we see no reason why the same rationale should not apply to the main charge. No fundamental error occurred in this case, because Smith requested the instruction of which he now complains.

Nevertheless, even if we were to address the issue, we would conclude that on the totality of the circumstances the use of “and/or” did not constitute fundamental error. See Garzon v. State, 980 So.2d 1038 (Fla.2008). In Garzon, the court explained that where the issue is not preserved, the proper approach is to examine “the totality of the record to determine if the ‘and/or’ instruction met the exacting requirements of fundamental instruction error.” Id. at 1043. This approach requires the “and/or” instruction to be analyzed in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case. See Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006), approved, 980 So.2d 1038, 1045 (Fla.2008).

The Garzón case arose from the criminal prosecution of three defendants, who were each charged with multiple crimes, including conspiracy, armed burglary, armed robbery, armed kidnapping and extortion. The state’s theory of the case was that Garzón, who had been in the victims’ home numerous times, directed the home invasion through a cell phone conversation with one of the intruders. 980 So.2d at 1039. The issue at trial boiled down to whether the state had proven that Garzón was the person who was on the cell phone guiding the intruders. Id. at 1041. The jury instructions used the “and/or” conjunctive phrase between the defendants’ names on the elements of each count. Id. at 1040. On appeal, two of the defendants argued that “the use of ‘and/or’ allowed the jury to convict the defendants based on a codefendant committing some or all of the elements of the charged crimes.” Id.

In concluding that no fundamental error occurred, the supreme court emphasized that “[w] or king in tandem, the instructions and verdict forms strongly emphasized to the jury that each defendant was to receive an individualized consideration.” Id. at 1044. The court noted that the jury was given a principals instruction, and both the state and the defense repeatedly communicated to the jury that it could not convict one defendant based on another defendant’s actions unless the requirements of the law of principals were met. Id. Additionally, the jury was given a “multiple defendants” instruction, reinforcing that the jury was to consider each defendant individually. Id. Furthermore, Garzon’s acquittal on the extortion count demonstrated that the jury followed the law of principals and was not misled by the “and/or” conjunction in the instructions. Id. at 1044-45.

Following Garzón, the vast majority of appellate decisions considering this issue have found that the use of the “and/or” conjunction between the co-defendants’ names did not result in fundamental error under similar circumstances. See, e.g., Rimmer v. State, 59 So.3d 763, 790-91 (Fla.2010); Hunter v. State, 8 So.3d 1052, 1070-71 (Fla.2008); Lewis v. State, 22 So.3d 753, 759 (Fla. 4th DCA 2009); Brown v. State, 35 So.3d 148, 156-58 (Fla. 3d DCA 2010); Nicholson v. State, 33 So.3d 107, 111-12 (Fla. 1st DCA 2010); Barrientos v. State, 1 So.3d 1209, 1219-20 (Fla. 2d DCA 2009); Green v. State, 996 So.2d 911, 912-13 (Fla. 1st DCA 2008).

Much of the same analysis applies to this case. The court gave both the principals and multiple defendants’ instruction, and Smith’s attorney strongly argued to the jury both instructions and why Smith could not be convicted because of them. Further, the state also stressed that the jury must decide the case against each defendant separately. Separate verdict forms were submitted for each co-defendant. In line with the foregoing cases, we conclude that the use of “and/or” in the jury instructions did not amount to fundamental error in this case.

Affirmed.

MAY, C.J., and POLEN, J., concur.

      . We reversed the conviction and sentence in O’Keefe on other grounds.

      . That instruction — entitled "Single Count, Multiple Defendants” — provides as follows: “The defendants have been tried together; however, you must consider each defendant and the evidence applicable to him separately. You may find one, any or both guilty or not guilty. However, your verdict as to one defendant must not affect your verdict as to the other(s).” Fla. Std. Jury Instr. 3.12(B).

      . The instruction on the law of principals states, in pertinent part: “If the defendant helped another person or persons [commit] [attempt to commit] a crime, the defendant is a principal and must be treated as if [he][she] had done all the things the other person or persons did if: 1) the defendant had a conscious intent that the criminal act be done and 2) the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime.” Fla. Std. Jury Instr. 3.5(a).