author: RAMIREZ, C.J.

text:
    Hamilton MONTEIRO, Petitioner, v. Monica MONTEIRO, Respondent.
    No. 3D10-1602.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.
    Boies, Schiller & Flexner, and Charles Fox Miller, Hollywood, for petitioner*.
    Schweitzer & Schweitzer-Ramras, and Darlene Schweitzer-Ramras, Coral Gables, for respondent.

      Before RAMIREZ, C.J., and SUAREZ and SAlLTER, JJ.
   RAMIREZ, C.J.

Hamilton Monteiro petitions this Court for a Writ of Certiorari in which he requests that we quash the trial court’s order of March 21, 2010, which mandated the in-camera examination of the minor children of the marriage, outside the presence of the parties and their counsel, at a final domestic violence injunction hearing. Because we conclude that the trial court did not depart from the essential requirements of law, we deny certiorari.

The original proceeding in the circuit court consists of an action for dissolution of marriage between Hamilton Monteiro, the husband, and Monica Monteiro, the wife. Four domestic violence petition actions were then consolidated with the dissolution of marriage case. The domestic violence actions involve one petition filed on behalf of the wife, which was filed on the same day as the filing of the dissolution of marriage action by the husband. The other three domestic violence petitions were filed on behalf of each of the three minor children. These three petitions were filed after the husband was arrested on September 17, 2009, as a result of the alleged sexual abuse by the husband regarding the three minor girls.

With respect to the trial court’s March 21, 2010 order under review, which was entered with respect to the four domestic violence petitions, the trial court stated that it would conduct an in-camera interview “of at least the two oldest Minor Children, privately and outside the presence of counsel and outside the presence of the parties, before the testimony of any and all other witnesses.” The court further ordered that it reserved the right to determine whether an in-camera interview of the youngest child would be conducted, also privately and outside the presence of counsel and outside the presence of the parties.

The husband argues in his petition for writ of common law certiorari that the trial court’s order violates his due process rights because an interview of the minor children without the presence of counsel or the parties deprives him of a meaningful opportunity to be heard. We disagree.

Common law certiorari is an extraordinary remedy which should not be used to circumvent the interlocutory appeal rule in which only a few types of non-final orders are appealable. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987). Erroneous interlocutory rulings that can be corrected by common law certiorari are extremely rare and relief will be provided only in very few cases where common law certiorari will be the appropriate relief. Id. at 1098-99. Moreover, as the moving party, the petitioner has the burden to demonstrate the departure from the essential requirements of the law. See Shook v. Alter, 715 So.2d 1082, 1083 (Fla. 4th DCA 1998).

The husband has not shown how the trial court departed from the essential requirements of the law. The husband has not cited to any authority which requires that the trial court submit the minor children to cross-examination by the husband’s counsel in the domestic violence action. Moreover, he has cited to no authority which requires the trial court to have the husband or his counsel present during any in-camera examination of the children in a domestic violence case. Consequently, there can be no departure from the essential requirements of law because the trial court did not violate any established principles of law when it entered the subject order.

Furthermore, Florida Family Law Rules of Procedure and case law support the trial court’s conclusion. Florida Family Law Rule of Procedure 12.407, “Testimony and Attendance of Minor Child,” states the following:

No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.

As the wife correctly points out, this rule is applicable to domestic violence proceedings. See Fla. Fam. R. P. 12.010(a).

In addition, the wife correctly argues under Hickey v. Burlinson, 33 So.3d 827 (Fla. 5th DCA 2010), that a parent’s due process rights are protected by the mere presence of a court reporter in an in-camera interview without counsel or parties present. In Hickey, the mother petitioned for writ of certiorari following the trial court’s denial of her motion to temporarily halt visitation between her two minor children and their father. Id. at 828. The mother alleged that the father was abusing alcohol during his visitation and, thus, endangering the children’s safety. The mother requested an abatement of visitation pending a determination of the extent of the father’s alcohol consumption and the danger posed to the children. Id. In addition, she requested, pursuant to Florida Family Law Rule of Procedure 12.407, leave for the minor children to attend and testify at the hearing. The trial court granted the motion and instructed the mother’s counsel to arrange a date and time for the children to testify. Id.

The mother and the children appeared at the hearing with counsel and a court reporter. Id. The mother objected when the trial court requested the children’s presence in chambers for their testimony, but would not allow the court reporter to be present. The trial court then asked the mother to withdraw her rule 12.407 motion. Id. The mother refused, stating that without the children’s testimony there was no evidence of the alleged alcohol abuse, and therefore, she would not be able to meet her burden to provide record evidence in support of the motion. Id. The trial court refused to conduct the interview with the court reporter present and denied the motion to abate visitation for lack of evidence. Id.

On appeal to the Fifth District Court of Appeal, the mother contended, among other things, that an in-camera evidentiary inquiry outside the presence of the court reporter precluded judicial review and also denied her due process. Id. at 829. The district court held that having granted the motion to allow the testimony of the children, the trial court erred when it disallowed the recording of the children’s in-camera testimony. Id. The court stated that this was because due process required that the party seeking to modify visitation demonstrate that there has been a material change in circumstances and that modification was required to protect the child’s best interest. Id. It is abundantly clear that the only method for the wife here, like the wife in Hickey, to prove her case was through the introduction of the children’s testimony. See also Hathcock v. Hathcock, 680 So.2d 564 (Fla. 1st DCA 1996); Nowak v. Nowak, 546 So.2d at 123.

Moreover, Florida Family Law Rule of Procedure 12.407 and Hickey also make it clear that the children’s interests are of the utmost importance in domestic and sexual violence cases. See Hickey, 33 So.3d at 829 (citing to Nowak, 546 So.2d at 123). Because of the delicate nature of the in-camera interview of minor children, the trial court has discretion to determine how the best interests of the children are to be protected. In fact, section 92.55, Florida Statutes (2010), entitled “Judicial or other proceedings involving victim or witness under the age of 16 or person with mental retardation; special protections,” states, in pertinent part, the following:

(1) Upon motion of any party, upon motion of a parent, guardian, attorney, or guardian ad litem for a child under the age of 16 or person with mental retardation, or upon its own motion, the court may enter any order necessary to protect a child under the age of 16 or person with mental retardation who is a victim or witness in any judicial proceeding or other official proceeding from severe emotional or mental harm due to the presence of the defendant if the child or person with mental retardation is required to testify in open court. Such orders shall relate to the taking of testimony and shall include, but not be limited to:
(a) Interviewing or the taking of depositions as part of a civil or criminal proceeding.
(b) Examination and cross-examination for the purpose of qualifying as a witness or testifying in any proceeding.
(c) The use of testimony taken outside of the courtroom, including proceedings under ss. 92.53 and 92.54.
(2) In ruling upon the motion, the court shall take into consideration:
(a) The age of the child, the nature of the offense or act, the relationship of the child to the parties in the case or to the defendant in a criminal action, the degree of emotional trauma that will result to the child as a consequence of the defendant’s presence, and any other fact that the court deems relevant; or
(b) The age of the person with mental retardation, the functional capacity of the person with mental retardation, the nature of the offenses or act, the relationship

See § 92.55, Fla. Stat. (2010) (emphasis added). In State v. Tarrago, 800 So.2d 300, 302 (Fla. 3d DCA 2001), we ruled that the trial court has inherent authority and discretion to protect a child witness. We stated that the trial court may “ ‘implement a procedure not expressly authorized by [the supreme court] or otherwise authorized by law if the procedure is necessary to further an important public interest.’ ” Id. (citations omitted). The trial court thus acted well within its discretion and consistent with its obligation to act in the children’s best interests.

In addition, the father’s request in this case for submission of the minor children to examination in the presence of counsel and/or parties, effectively superimposes his right to due process upon the best interests of the children. This is impermissible. The father’s request is particularly at odds with the truth-finding process where, as here, he is the subject of the minor children’s testimony. Thus, the only way to obtain the truth from the minor children is to conduct the interview outside the presence of the father. Clearly, the Florida Legislature has recognized that in situations such as the one before us today, the best interests of the minor children are paramount. As such, we find that the trial court’s decision was not a departure from the essential requirements of law. On remand, the father can request that a court reporter be present so that the children’s testimony is transcribed, thus permitting judicial review.

The husband further contends that he could suffer material injury throughout the remainder of the proceedings in the trial court for which a remedy on appeal would be inadequate. We disagree with this contention. In the subsequent dissolution of marriage action that will follow the domestic violence proceedings, the trial court will address the parties’ timesharing rights. As such, the husband will not suffer any irreparable harm.

As to the husband’s remaining arguments on appeal, we find them to be without merit and decline to address them. Accordingly, we deny the petition for writ of certiorari.

      . See, e.g., Castellanos v. Dep’t of Health & Rehab. Servs., 545 So.2d 455, 456-57 (Fla. 3d DCA 1989), where we noted that Florida Rule of Juvenile Procedure 8.610(b), which entitled in-camera proceedings generally provides that in all cases conducted under the Florida Juvenile Justice Act [ch. 39, Fla. Stat. (1987) ], including juvenile dependency cases, ‘[t]he child may be examined by the court outside the presence of other parties under circumstances as provided by law.’ Section 39.408(2)(c), Florida Statutes (1987), specifically governs hearings in juvenile dependency cases and provides that '[t]he child and the parents or legal custodians of the child may be examined separately and apart from each other.’ We further stated in Castellanos that this was "hardly surprising as the legislature has obviously determined that such a procedure is particularly suited to all juvenile dependency cases, that the effort to obtain the truth from the minor child is unlikely to be successful if conducted in the presence of his parent or guardian whose care of the child is being questioned, and that the child necessarily requires a special exemption from the rigors of cross examination by the parent or guardian.” Id. at 457.

      . See also, Fla. R. Juv. P. 8.625(c) "In camera Proceedings” stating, “The child may be examined by the court outside the presence of other parties under circumstances as provided by law. The court shall assure that the proceedings are recorded unless otherwise stipulated by the parties.”


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    The CONTINENTAL CASUALTY COMPANY, Petitioner, v. Robert PRZEWOZNIK and Richard Przewoznik, Respondents.
    No. 3D11-1.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      Houck Anderson, Andrew W. Anderson, Miami, and Richard R. McCormack, for petitioner.
    Horan, Wallace & Higgins and David Paul Horan, Key West, for respondents.
    Before WELLS, SALTER, and EMAS, JJ.
   WELLS, Judge.

Petitioner, The Continental Casualty Company, seeks certiorari review of an order disqualifying its counsel, Houck Anderson, P.A, from representing it in the instant action. Finding that the trial court departed from the essential requirements of the law, we grant the petition. See Event Firm, LLC v. Augustin, 985 So.2d 1174, 1175 (Fla. 3d DCA 2008) (noting that “certiorari is the proper method to obtain review of a disqualification order because denying a party counsel of his or her choice is a material injury without appellate remedy”).

In April 2008, Petitioner paid $77,000 to its insureds, Respondents Robert and Richard Przewoznik, for damages sustained to their insured vessel when it sunk. In July 2010, Petitioner filed the underlying lawsuit against Respondents, asserting various claims related to the $77,000 payment. Respondents thereafter moved to disqualify Petitioner’s counsel, Houck Anderson, P.A., based on a purported conflict of interest in violation of the Rules of Professional Conduct because Houck Anderson, P.A. also had represented another insurance company that, in a prior lawsuit, defended against Respondents’ claim for damages sustained to the same sunken vessel. According to the Respondents, “[b]y virtue of Houck Anderson’s representation of [both insurance companies], there is an irrefutable presumption that confidential information has been disclosed to Houck Anderson.”

After holding a hearing on the motion, the trial court entered an order disqualifying Houck Anderson, P.A. In its order, the trial court recognized that disqualification of opposing counsel is generally disfavored, see Singer Island Ltd., Inc. v. Budget Constr. Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998) (finding that “[disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly”), and that a party generally does not have standing to seek disqualification where, as here, there is no privity of contract between the attorney and the party claiming a conflict of interest. See Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046, 1050-51 (Fla. 5th DCA 2004) (finding that a party did not have standing to seek to disqualify opposing counsel which had never previously represented that party). The trial court also did not find that Houck Anderson P.A. had violated any particular Rule of Professional Conduct. Nevertheless, based upon Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Authority, 593 So.2d 1219 (Fla. 1st DCA 1992), the trial court still disqualified Petitioner’s counsel because “[H]ouck Anderson’s involvement with so many aspects of the predecessor action and this action is so overweening [sic] that an appearance of impropriety is a natural consequence.” (Emphasis added).

We find that the trial court misapplied Kenn Air Corp. as the main issue in that case was not the “appearance of impropriety,” but whether the petitioner had standing to seek to disqualify opposing counsel for a conflict of interest that violated the Rules of Professional Conduct. More specifically, our sister court considered whether a corporation had standing to seek disqualification of an attorney who had previously represented the corporation’s predecessor-in-interest in matters that were substantially related to the underlying litigation. Upon reviewing Rule 4-1.9 of the Rules Regulating the Florida Bar, which prohibits an attorney from switching sides in litigation, the First District found that the petitioner corporation could “stand in the shoes” of its predecessor-in-interest in order to seek disqualification based on an extension of the standing rule previously explicated by the Florida Supreme Court:

The threshold question then is whether an attorney-client relationship existed. It is undisputed that no attorney-client relationship has ever existed between Kenn Air and Ireland. The question next to be answered is whether Kenn Air may “stand in the shoes” of [its predecessor-in-interest], Ireland’s former client, in order to have standing to make the motion for disqualification ....
Kenn Air asserts a violation of rule 4-1.9, which provides that a lawyer who has formerly represented a client in the matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client consents after consultation. The rule also prohibits the attorney from using information relating to the representation of a former client to the disadvantage of the former client. This rule is aimed at the problem of attorneys “switching sides,” and arises because the duty of confidentiality under rule 4-1.6 protects all confidences and information obtained during representation of a client, and because this duty continues even after the attorney-client relationship is terminated.
As to the question of Kenn Air’s standing, the comment to rule 4-1.9 references the comment to rule 4-1.7, which recognizes that someone other than a client or former client may move for disqualification in instances involving conflicts of interest in simultaneous representations. That circumstance exists when the conflict is clear and the question of fair and efficient administration of justice is raised. Because switching sides and conflict of interest in simultaneous representation are two ethical violations that can be clearly seen by persons other than clients, we extend the standing rule set out in State Farm Mutual Automobile Insurance Co. v. K.A.W., 575 So.2d 680 (Fla.1991) (holding that an insurance company could “stand in the shoes” of its insured for the purpose of seeking disqualification of the opposing party’s attorney when there existed simultaneous representation of parties with conflicting interests), to the situation at bar and therefore afford Kenn Air standing to raise the motion for disqualification.

Id. at 1222 (citations omitted).

Having found that the corporation could stand in the shoes of its predecessor-in-interest and bring the disqualification motion, the Kenn Air Corp. court then turned to the merits of the motion, finding that disqualification was warranted because of the irrefutable presumption that the subject attorney was privy to confidential information due to his prior representation of the predecessor-in-interest, giving the impression that the attorney had switched sides in the current litigation:

As to the merits of the motion, it is undisputed that Ireland had a longstanding relationship with Charter [the predecessor-in-interest] regarding its leases at the airport. Thus, an irrebuttable presumption arises that Charter disclosed confidences to Ireland during that representation. To allow Ireland to represent a successor of his former client’s adversary in a matter which appears to be substantially related to that in which Ireland previously represented the former client, Charter, creates the appearance that Ireland has switched sides.
Upon consideration of the public’s perception of the integrity of the bar, and the appearance of impropriety that arises in situations in which an attorney switches sides, we conclude that the trial court departed from the essential requirements of law by denying Kenn Air’s motion for disqualification under the circumstances.

Id. at 1228 (footnote omitted).

Kenn Air Corp. is inapplicable here because Respondents have not demonstrated that they have any shoes to “stand in” in order to seek disqualification of opposing counsel. Indeed, Respondents cannot point to any legal relationship between either themselves or a predecessor-in-interest and Houck Anderson, P.A. in which confidences were disclosed with respect to their sunken vessel. Rather, it is undisputed that Respondents have always had separate counsel representing them in the lawsuits involving Respondents’ sunken vessel and that Houck Anderson, P.A., as opposing counsel in those lawsuits, has always been in an adversarial role to Respondents.

K.A.W., which permitted an insurer to “stand in the shoes” of its insured for purposes of seeking to disqualify opposing counsel, is also inapplicable. In that case, a family (husband, wife and daughter) retained the same counsel when they were injured in an automobile accident. When it was determined that the husband’s negligence may have contributed to the accident, the husband consented to the firm’s continued representation of his wife and daughter and then retained a new attorney for himself. The husband was then added as a defendant in the personal injury action brought against the driver of the other vehicle, wherein the husband consented to be sued up to the limits of his insurance coverage. The Florida Supreme Court found that the insurer was permitted to “stand in the shoes” of its insured, the husband, to seek disqualification of the wife and daughter’s law firm, notwithstanding the husband’s consent to the firm’s continued representation of his wife and daughter, because the action was “in reality ... an action by the mother and child against the parent’s insurance carriers” given that that husband was not exposed to any personal liability. K.A.W., 575 So.2d at 633. Nothing similar to the circumstances existing in K.A.W. are present here.

We recognize that in reaching its decision in K.A.W., the Florida Supreme Court noted that that “[cjomments to the Rules of Professional Conduct indicate that under certain circumstances someone other than the client may request disqualification,” as “where a conflict ‘is such as clearly to call in question the fair or efficient administration of justice.’” Id. at 632 (quoting cmt. to R. Regulating Fla. Bar 4-1.7). However, we decline to find that sufficient circumstances exist in this case which would satisfy this standard so as to give Respondents standing to seek disqualification of Houck Anderson, P.A. See, e.g., Anderson Trucking Serv., Inc., 884 So.2d at 1050-51 (refusing to extend the “fair administration of justice” standard stated in K.A.W. to give a plaintiff standing- to seek disqualification of opposing counsel, where opposing counsel never represented plaintiff and the alleged conflict of interest existed due to counsel’s continued representation of two defendants after withdrawing as counsel for a third co-defendant). While the trial court’s ruling to the contrary was premised upon the fact that Houck Anderson, P.A. represented another insurance company in a prior action involving the same sunken vessel that is involved in the instant lawsuit, this case does not involve circumstances where the law firm either disclosed confidences learned from representing Respondents or switched sides in violation of the Rules of Professional Conduct. See R. Regulating Fla. Bar 4-1.6; R. Regulating Fla. Bar 4-1.9. Accordingly, we find that the trial court departed from the essential requirements of the law in entering the order disqualifying Houck Anderson, P.A. as counsel for Petitioner.

The petition for writ of certiorari is granted, the order granting disqualification is quashed, and the cause is remanded for further proceedings.

      ; The Amended Complaint alleges claims for breach of contract (Count I), breach of constructive trust (Count II), and equitable subro-gation (Count III).


text:
    David Gomez MILLAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2900.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      Crystal McBee Frusciante, for appellant.
    Pamela J. Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and CORTINAS, JJ.
   WELLS, Judge.

David Millan appeals from an order denying his timely Florida Rule of Criminal Procedure 3.850 motion and its supplement in which he raised six ineffective assistance of counsel claims. As to all, we affirm.

Millan was convicted of the second degree murder of Roland Pastor. Millan admitted stabbing Pastor to death, but contended that he did so in self defense. Millan’s conviction was affirmed in Millan v. State, 932 So.2d 557 (Fla. 3d DCA 2006), in which this court recited the facts pertinent here as follows:

In this case the defendant admitted that he had killed the victim but argued self defense. He gave a lengthy statement to the police. In his description of the events he said that the victim reached for a knife but he (the defendant) grabbed it first. Once the defendant grabbed the knife, the victim was unarmed. The defendant then stabbed the unarmed victim.
The medical examiner testified that the victim was stabbed several times, beaten with a bat and tire iron, and had his throat slit. While the victim was dead or dying, the Latin Kings’ insignia was carved into the victim’s forehead. The medical evidence and the defendant’s own account are inconsistent with any theory of self defense....

Id. at 560.

Millan’s post-appeal 3.850 motion and its supplement claim that defense counsel was ineffective because he failed to (1) call Pastor’s mother as a witness to testify that “Pastor had a propensity for both violent and criminal behavior,” testimony that purportedly would support Millan’s claim of self defense; (2) either hire an independent medical expert or alternatively to call Dr. Ray Fernandez, the second of three medical examiners who examined Pastor’s body and who purportedly contrary to the other two medical examiners who examined Pastor’s body, determined that Pastor sustained blunt force trauma to his forehead (which would be inconsistent with the testimony of the other two MEs who testified that Pastor sustained an incised wound consistent with a determination that gang insignia had been carved into Pastor’s forehead); (8) provide competent advice by convincing Millan to reject a fifteen year plea offer by telling him “all the State has is a domestic dispute gone bad, and you were forced to defend yourself. Self-defense is pretty obvious, and we can prove it”; (4) object to a number of statements made by the State in closing, mostly relating to gang activity; (5) request a limiting instruction on “Williams Rule” evidence; and (6) object to purportedly misleading and confusing jury instructions.

The court below rejected claims one through five without an evidentiary hearing. Claim six was rejected following an evidentiary hearing. Because the record below fully supports the trial court’s order rejecting these claims, we affirm.

As to claims one, two and five, the second or prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was not met. Specifically, to satisfy this prong Millan had to demonstrate that but for counsel’s unprofessional failure to call either Pastor’s mother or Dr. Fernandez (the medical examiner who said Pastor’s head injuries were caused by blunt force trauma), and his failure to request a limiting instruction regarding gang evidence, the outcome of his trial would have been different. No such claim was asserted in Millan’s motion. Indeed on the record before us, no such claim could have been made.

Millan’s third claim is also legally insufficient. Advising a client to reject a plea offer because counsel believes that he or she “could win at trial,” alone does not establish a legally sufficient ineffective assistance of counsel claim. Rather, to state a legally sufficient claim on such grounds some specific deficiency on the part of counsel must be alleged, that is, that “counsel’s assessment of the chances of success at trial was unreasonable under the circumstances of this case or that counsel had not investigated or otherwise was not familiar with the case.” Garcia v. State, 21 So.3d 30, 34 (Fla. 3d DCA 2009) (citing Morgan v. State, 991 So.2d 835, 841 (Fla.2008)). No such assertions exist here.

Millan’s fourth claim also was properly rejected. In Millan, 932 So.2d at 560, this court rejected Millan’s request for a new trial because of the same purportedly improper statements, mostly concerning gang activity, made by the prosecution during closing argument. In doing so, we noted that while most of these statements were not objected to, they did “not amount to fundamental error.” This determination precludes consideration of this issue in this post-conviction motion. See Chandler v. State, 848 So.2d 1031, 1046 (Fla.2003) (stating that “[b]ecause [the defendant] could not show the [prose-cutorial] comments [complained about] were fundamental error on direct appeal, he likewise cannot show that trial counsel’s failure to object to the comments resulted in prejudice sufficient to undermine the outcome of the case under the prejudice prong of the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 466 U.S. 668 (1984) ] test”)

Finally, as to Millan’s sixth claim, a review of the transcript of the evidentiary hearing held below on this claim confirms that counsel’s performance was not defective in any manner as to the jury instructions. The instructions read to the jury were consistent with the written instructions and in no manner confusing.

Accordingly, the orders on review are in all respects affirmed.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: LAGOA, J.

text:
    Patricia R. HAUGHEY, Appellant, v. ROYAL CARIBBEAN CRUISES, LTD., and Island Sea-Faris, Ltd., d/b/a Antigua Sea-Faris Tour Company, Appellees.
    No. 3D10-1061.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.
    Lipcon, Margulies Alsina & Winkleman and Michael A. Winkleman, Miami, for appellant.
    Hamilton, Miller & Birthisel and Jerry D. Hamilton and Michael J. Dono, Miami, for appellee Island Séa-Faris, Ltd.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   LAGOA, J.

Patricia Haughey (“Haughey”) appeals from the trial court’s December 1, 2009, and March 11, 2010 orders denying Hau-ghey’s ore tenus motion to amend the amended complaint. For the following reasons, we affirm.

In 2007, Island Sea-Faris appealed the denial of its Motion to Dismiss the Amended Complaint for lack of personal jurisdiction. In Island Sea-Faris Ltd. v. Haughey, 13 So.3d 1076 (Fla. 3d DCA 2008), this Court reversed the trial court’s order as there was neither a statutory basis for exercising jurisdiction over Island Sea-Faris nor were there sufficient contacts between Island Sea-Faris and the State of Florida to satisfy due process. Specifically, this Court held:

We conclude that Haughey failed to meet both prongs of Venetian Salami in that there was no statutory basis for exercising personal jurisdiction over Island Sea-Faris in connection with the subject accident and, even if there was, given the lack of contacts, it would violate due process to exercise such jurisdiction. We therefore reverse and remand -with directions to dismiss the action against Island Sea-Faris.

Id. at 1079. The Court issued its Mandate on September 8, 2009.

On November 16, 2009, Island Sea-Far-is, consistent with this Court’s mandate, filed a motion with the trial court to dismiss the action. At the hearing on that motion, and despite this Court’s prior opinion that jurisdiction could not be exercised over Island Sea-Faris, Haughey moved ore tenus for leave to amend her complaint against Island Sea-Faris. The trial court denied that ore tenus motion, and entered an order holding: “Island Sea-Faris Ltd. is dismissed from this action with prejudice, in accordance with the mandate of the Third District Court of Appeal. Island Sea-Faris shall go hence without day.”

On December 11, 2009, Haughey filed a motion for rehearing. On March 11, 2010, the trial court issued the following order:

1. The Motion for Rehearing is GRANTED with regards to the dismissal of ISLAND SEA-FARIS LTD. with prejudice.
2. ISLAND SEA-FARIS LTD. is dismissed from this action without prejudice to Plaintiff filing an action against it in a jurisdiction other than Florida. However, it is now law of the case and there is no general or specific jurisdiction over ISLAND SEA-FARIS LTD. in the State of Florida. Therefore, this court will not entertain any further efforts to amend the complaint in this case to include or add ISLAND SEA-FARIS LTD. as a defendant in this case.
3. ISLAND SEA-FARIS LTD. shall go hence without day.
4. Plaintiffs Ore Tenus Motion for Leave to Amend Her Complaint is DENIED.

This appeal ensued. We affirm the trial court’s orders as the trial court properly recognized that it was not authorized to deviate from the terms of this Court’s mandate. “That is to say, a trial court lacks discretionary power to go beyond the scope of relief granted by the appellate court.... [0]nce the present case was decided on appeal, the circuit court was bound by the decree as the law of the case and was required to perform the purely ministerial act of implementing the mandate. As the trial court could not give any other relief other than to put into effect that which had been remanded, it was correct in declining to grant the relief sought by [Haughey].” Akins v. Akins, 839 So.2d 910, 911 (Fla. 5th DCA 2003) (citation omitted). This Court’s prior opinion specifically reversed the trial court’s order denying Island Sea-Faris’s motion to dismiss and remanded “with directions to dismiss the action against Island Sea-Faris.” There were no directions to the trial court to allow Haughey leave to amend, nor would there have been as this Court’s prior opinion noted that it would violate due process to exercise jurisdiction over Island Sea-Faris.

Affirmed.

      . Because Haughey’s motion to amend the amended complaint was ore tenus, Haughey did not submit a proposed second amended complaint.


author: PER CURIAM.

text:
    Reynold Jean LOUIS, Appellant, v. LaSALLE BANK NATIONAL ASSOCIATION, Appellee.
    No. 3D10-551.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.
    Save My Home Law Group and Carol C. Asbury, for appellant.
    Clarke Silverglate & Campbell, Karen H. Curtis, and Dennis M. Campbell, Miami, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.540(b); Techvend, Inc. v. Phoenix Network, Inc., 564 So.2d 1145, 1146 (Fla. 3d DCA 1990).


author: LEVINE, J.

text:
    Robert S. HAYES, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D08-3327, 4D09-1633.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.

      Carey Haughwout, Public Defender and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The state filed a petition seeking the involuntary commitment of appellant to the custody of the Department of Children and Families (“DCF”) as a sexually violent predator under the Jimmy Ryce Act. A jury found appellant to be a sexually violent predator, and the trial court committed him to the custody of DCF “until such time as the Respondent’s mental abnormality or personality disorder has so changed that it is safe for the Respondent to be at large.” Appellant appeals this commitment.

Appellant presents three issues in this case: (1) whether the trial court erred in overruling appellant’s objections to the prosecutor’s remarks in opening and closing statements; (2) whether the trial court erred in denying a motion for relief from judgment where the jury inadvertently viewed two exhibits not admitted into evidence; and (3) whether the trial court erred in denying a motion for mistrial when a doctor testified that there was a “chance” that appellant had already “killed” a child. We find that any errors were harmless, and as such we affirm the civil commitment of appellant.

In 2000, the state filed a petition seeking involuntary commitment of appellant. Previously, in 1992, appellant was charged with capital sexual battery on his four-year-old stepdaughter. Appellant subsequently pled guilty to the lesser included offense of lewd assault. At the plea conference, the state and appellant agreed that the probable cause affidavit constituted a sufficient factual basis for the plea. In the agreed-to probable cause affidavit, there was a statement from the victim stating that appellant had “put his private in [her] private.”

Prior to the civil commitment trial, the court granted a motion in limine preventing the state from referencing either the charge of capital sexual battery or the penetration in regard to the case involving his four-year-old stepdaughter. The state was allowed, however, to introduce evidence relating to the lewd assault to which appellant had pled guilty.

During the opening statement, the prosecutor stated that appellant was convicted of a sexually violent offense “because he was convicted of lewd assault on ... the 4 year old daughter of his girlfriend by coming into the girl’s room at night, placing his private on her private.” Appellant’s objection was overruled by the trial court.

Later, in the closing argument, the prosecutor stated that appellant “was convicted of lewd assault on ... the 4 year old daughter of his girlfriend. Again he came into her room at night, placed his private into her private....” Appellant objected, but the objection was overruled by the trial court. The trial court also denied appellant’s motion for mistrial based on the prosecutor violating the order in li-mine, which prevented the state from mentioning “penetration” as it related to this victim.

Additionally, after the trial, the court entered an agreed-upon order for jury inquiry. Appellant’s counsel had noted that two exhibits, marked only for identification and not entered into evidence, may have been reviewed by the jury. The two exhibits were medical evaluations of appellant, which referenced appellant’s sexual battery charge and conviction for the lesser-included offense of lewd assault. They also included the victim’s statement that Hayes “put his private into her private.” In response to a questionnaire sent to the jury by the trial court, two jurors responded that they had, in fact, read both exhibits during the deliberations. The trial court determined that the two medical evaluations “had no effect on the outcome of this case given the totality of the evidence presented by the State” and denied appellant’s motion for relief from judgment.

Finally, Dr. Morin, a psychologist specializing in the evaluation and treatment of sex offenders, stated that a psychiatrist told him that he was concerned with appellant’s fantasies of “killing again.” Dr. Morin stated, based on what the other medical professionals told him, “[tjhat there’s a chance that Mr. Hayes has already killed a child.” Appellant objected, and the court sustained the objection. The trial court denied the motion for mistrial but gave the following curative instruction telling the jury not to consider that statement:

Mr. Hayes has not ever been charged with murder. He’s never been suspected of a murder. He’s never been accused of murder.... Please ... forget murder. This isn’t about a murder, he’s not accused of a murder, he’s not suspected of a murder. So I don’t know how much more clearer [sic] I can be, but hopefully that’s clear enough.

The Involuntary Civil Commitment of Sexually Violent Predators Act, sections 394.910-932, Florida Statutes, also known as the Jimmy Ryce Act, requires the state to prove by “clear and convincing evidence” that “the person is a sexually violent predator.” § 394.917(1), Fla. Stat. The law is geared towards providing “long-term care and treatment” to those persons who are likely to engage in “repeat acts of predatory sexual violence.” § 394.910, Fla. Stat. We find there is overwhelming evidence, beyond clear and convincing, that appellant is likely to commit repeat acts of predatory sexual violence.

At trial, aside from the testimony regarding the lewd assault of the four-year-old stepdaughter, appellant’s sister testified that appellant protected her from her older brother in return for sexual favors. When she was thirteen or fourteen, she had sexual intercourse with him. The sister also testified that when she was about eleven, appellant had her hold down one her friends while he raped her.

Dr. Morin testified to appellant having a long history of fantasies about children. He diagnosed appellant as a pedophile with an anti-social personality disorder. Dr. Morin testified that appellant fantasized about molesting and killing children and that he heard voices telling him to “go out and rape children.” Appellant had concerns that “he may follow through on his fantasies to molest and murder children.” Appellant admitted to “molesting his step daughter” and to “molestfing] more than one boy under 12.” Dr. Morin stated that appellant had “minimal guilt” about his “sexual crimes” and that appellant “was sleeping restlessly because of the obsessive thoughts of killing children and raping them.” At a sex offender group meeting, appellant expressed concern about the Jimmy Ryce Act and was recently “minimizing” his fantasies. The doctor testified that appellant stated, “I’m having fantasies of killing again, and you know that I have done it. No, I didn’t say that.”

Dr. Morin stated that appellant’s pedophilia is a mental abnormality that makes him likely to commit acts of sexual violence. Dr. Morin administered to appellant a risk assessment examination to determine the likelihood that appellant would commit a new sex offense, and the doctor determined that appellant was in a high risk group to reoffend. Dr. Morin determined that appellant met the criteria for a sexually violent offender. He concluded that appellant was a “pedophile without conscience.”

During the doctor’s testimony, the state introduced into evidence two “autobiographies” that appellant authored while in outpatient treatment. In these autobiographies, appellant admitted to having the eight-or nine-year-old brother of one of his friends perform oral sex on him at age twelve. Later when he was fourteen or fifteen, appellant, with other boys, picked up a high-school-aged-girl in a stolen car and raped her in the car. Later, after his release from jail, appellant admitted to getting “a little action with a few young kids. Their age was usually about 10 years old or maybe a little less. The child would be the daughter of a friend. I’ll be watching their kids.” Appellant also admitted to possessing, as well as creating, child pornography. In the autobiography, appellant admitted to engaging in sex with his stepdaughter: “Here is my reality. She was five year’s [sic] old[.] I enjoyed the sex with her vary [sic] much. I think she did also. She liked to make daddy happy.”

Appellant concluded one of his autobiographies by stating that he has the “potent[i]al to ex[e]cute these fanta[sies].” Appellant said he saw himself “abducting a young girl. Driving her to the woods somewhere. Raping her. Full penetration, unlike with my stepdaughter w[h]ere I did’nt [sic] penetrate. Then a grave. That way she would be just another picture in my photo album. Another picture on the milk carton at the local groce[r]y store.”

Dr. Parker, another clinical psychologist, also testified to administering an examination to determine appellant’s risk of reof-fending. Dr. Parker concluded that appellant was at high risk to reoffend and, in her opinion, met the criteria for commitment as a sexually violent offender.

The defense presented the testimony of Dr. Shadle, a physician specializing in psychiatry, who concluded that appellant did not meet the criteria for commitment and that appellant was a “typical recidivist.” The defense also presented testimony from Dr. Campbell, a psychologist, who concluded that the risk of appellant reoffending was at the low end of the spectrum.

The jury returned a unanimous verdict finding appellant a sexually violent predator. The trial court adjudicated appellant a sexually violent predator and committed him to the custody of the DCF.

Appellant contends that the trial court abused its discretion, where the state in opening and closing arguments mentioned “penetration” despite the trial court’s granting of a motion in limine. “A trial court has discretion in controlling opening and closing statements, and its decisions will not be overturned absent an abuse of discretion.” Merck v. State, 975 So.2d 1054, 1061 (Fla.2007). A trial court does not abuse its discretion in denying a motion for mistrial, based upon improper comments, where the improper comments are not so prejudicial or inflammatory as to mandate a mistrial or new trial. Merastar Ins. Co. v. Webb, 932 So.2d 228, 229 (Fla. 4th DCA 2005); see also Leyva v. Samess, 732 So.2d 1118, 1121 (Fla. 4th DCA 1999). “The violation of a pretrial order, in and of itself, does not necessarily warrant the granting of a new trial where that violation has caused no prejudice to the opposing case.” Leyva, 732 So.2d at 1121.

The state concedes that the prosecutor’s comment in closing argument was improper but characterizes it as “fleeting and isolated.” We find the statements of the prosecutor in both the opening and closing statements to be improper. However, based on our review of the entire record, we find the error to be harmless. The test for harmless error in a civil case “is whether, but for the error, a different result would have been reached.” Pascale v. Fed. Exp. Corp., 656 So.2d 1351, 1353 (Fla. 4th DCA 1995); see also Marshall v. State, 915 So.2d 264 (Fla. 4th DCA 2005). “[T]he reviewing court must examine the entire case to determine whether ‘the error complained of has resulted in a miscarriage of justice,’ specifically applying standard of liberal construction.” Pascale, 656 So.2d at 1354 (quoting § 59.041, Fla. Stat.). It is abundantly clear that a different result would not have been reached but for the cited errors.

We also find error in Dr. Morin’s statement that there was a chance appellant had already killed a child. However, the error was cured by the trial court’s curative instruction. “If the trial court could have reasonably decided that a curative instruction could have clarified any possible misunderstanding, then denial of the mistrial motion is warranted.” Hulick v. Beers, 7 So.3d 1153, 1157 (Fla. 4th DCA 2009). Further, “[a] motion for mistrial is properly denied where the matter on which the motion is based is rendered harmless by a curative instruction.” Perez v. State, 919 So.2d 347, 364 (Fla.2005). In the present case, the trial court gave a lengthy and extensive instruction that the jury not consider the brief remark made by Dr. Morin. Further, the trial court explained to the parties that its denial of the motion for mistrial was based on the fact that the record was replete with references to the fact that appellant “fantasized about killing kids” or “raping them and killing them.” Once again, based on our review of the record we find the error to be harmless and cured by the curative instruction.

Finally, appellant claims that the trial court abused its discretion by denying his motion for relief from judgment. Appellant’s motion was based on the fact that the clerk inadvertently submitted to the jury exhibits that were not admitted into evidence but rather marked only for identification purposes. The trial court here had “broad discretion in determining whether to grant relief from a judgment. Likewise, we review orders of the trial court on such motions for abuse of discretion.” Kroner v. Singer Asset Fin. Co., L.L.C., 814 So.2d 454, 456 (Fla. 4th DCA 2001) (citations omitted). Clearly, “[a] new trial could be warranted if the jurors considered unauthorized materials affecting their verdict.” Bush v. State, 809 So.2d 107, 115-16 (Fla. 4th DCA 2002). In the present case, the materials which were reviewed by two jurors included references to the sexual battery charge, which involved penetration of the victim, to which appellant eventually pled to a lesser included offense.

We conclude again that, but for this error, a different result would not have been reached. We need not recount in detail the volumes of evidence admitted, without objection, detailing appellant’s many admissions involving sexually predatory behavior, including engaging in sexual misconduct with his stepdaughter. We agree with the trial court that “[t]he state presented overwhelming evidence that the Respondent suffers from a mental abnormality or personality disorder and that he would be likely to engage in acts of sexual violence if not confined.”

For all the foregoing reasons we affirm the judgment of civil commitment and the adjudication of appellant as a sexually violent predator.

Affirmed.

POLEN and CIKLIN, JJ., concur.


author: GROSS, C.J.

text:
    Fatemeh LAUSSERMAIR, Appellant, v. Thomas LAUSSERMAIR, Appellee.
    No. 4D09-4823.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellant.
    Susan E. Greenberg and Christopher A. Tiso of Schuttler & Greenberg, LLC, Boca Raton, for appellee.
   GROSS, C.J.

We reverse that portion of an order dismissing a petition for modification of a dissolution judgment because the circuit court went beyond the allegations of the petition to decide the case after a hearing on the motion to dismiss.

In 2006, the parties resolved their divorce with a marital settlement agreement that was incoi'porated into a final judgment. In pertinent part, the agreement required the husband to pay $1200 per month in child support until May 31, 2009; after that date, the agreement provided that he was to pay, as child support, $750 into a college educational account mutually selected by the husband and wife. Also, the husband was required to maintain health and dental insurance for the children and to pay non-reimbursed health expenses for the children until they graduated from high school.

In April, 2009, the former wife filed a petition to modify the final judgment in two ways. First, she contended that the provision converting the $1200 monthly child support payment to a $750 payment into a college educational account was void as against public policy. Second, she said there had been a substantial change in circumstances, in part because the former husband’s income had increased since the final judgment, evidenced by a posting “on his website” that beginning in May, 2009, he was planning the “ ‘adventure of a lifetime’ by bicycling from Alaska to Patagonia.”

The former husband moved to dismiss the petition. There was a hearing before a magistrate, where the former wife verified her petition and the former husband presented no evidence, but his lawyer represented that the former husband had been laid off. The former wife’s attorney argued that the trial court was limited to the allegations in the four corners of the petition.

The circuit court ultimately granted the motion to dismiss, rejecting the public policy argument concerning the child support payment and finding the allegations about the former husband’s changed earnings to be “speculative in view of the motion to dismiss which represents that he is unemployed.”

We affirm that portion of the order finding no public policy violation in the provision of the settlement agreement requiring the child support payment of $750 to be deposited into a college educational account. That provision did not “relieve” the former husband of “his duty to support his minor child entirely or permanently,” which would have been contrary to public policy. Lester v. Lester, 736 So.2d 1257, 1259 (Fla. 4th DCA 1999) (quoting Brock v. Hudson, 494 So.2d 285, 287 n. 3 (Fla. 1st DCA 1986)). Rather, the payment was directed into an account for the benefit of the child. The obligation of a parent to not waive or “otherwise ‘contract away their child’s right to support ... does not preclude [parents] from making contracts or -agreements concerning their child’s support so long as the best interests of the child are served.” Lester, 736 So.2d at 1259 (internal citation omitted).

We reverse that portion of the order dismissing the former wife’s claim that there had been a substantial change in circumstances because the former husband’s income had increased since the final judgment. In relying on the representations of the attorney that the former husband was unemployed, the court went beyond the four corners of the petition. The former husband contends that the court properly looked beyond the allegations of the petition because his former wife had committed a fraud on the court, since she knew that he had been fired.

However, there was no evidentiary hearing or competent evidence that the former wife had committed fraud on the court, only the attorney’s representations during the motion hearing. See Gilbert v. Eckerd Corp. of Fla., Inc., 34 So.3d 773, 776 (Fla. 4th DCA 2010) (“It is the moving party’s burden to establish by clear and convincing evidence that the non-moving party has engaged in fraudulent conduct warranting dismissal.” (citation omitted)). This lack of evidence distinguishes this case from Savino v. Florida Drive In Theatre Management, Inc., 697 So.2d 1011 (Fla. 4th DCA 1997), the primary case on which the former husband relies. In Savi-no, this court affirmed the dismissal of a plaintiffs personal injury action. Id. at 1012. The plaintiff had testified in a deposition that he was unable to work. Id. The defendant presented deposition testimony to the court that the plaintiff had worked since the accident, as well as evidence that the plaintiff had lied about his educational background and level of intelligence, which went to his damages. Id. This court affirmed because the plaintiff “lied about matters which went to the heart of his claim on damages,” and “the trial court has the right and obligation to deter fraudulent claims from proceeding in court.” Id. The level of evidentiary support that justified the dismissal in Savino is not present in this case.

We therefore reverse in part and affirm in part and remand to the circuit court for further proceedings. We note that there is nothing to preclude the court from hearing evidence on the fraud on the court issue or from taking the bad faith litigation conduct of either party into account in setting attorney’s fees under Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

STEVENSON and GERBER, JJ„ concur.


text:
    Javier Belmontes LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3247.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Carey Haughwout, Public Defender, and James W. Melntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010).

POLEN, HAZOURI and CIKLIN, JJ., concur.


text:
    Abraham Ben YISRAEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-796.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.

      Abraham Ben Yisrael, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We affirm the trial court’s order that denied appellant’s motion for return of property. Our affirmance is without prejudice to appellant raising this issue in a facially sufficient motion to return property.

MAY, CIKLIN and GERBER, JJ., concur.


text:
    J.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-779.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See J.D. v. State, 920 So.2d 117 (Fla. 4th DCA 2006).

POLEN, HAZOURI and CIKLIN, JJ., concur.


author: DAMOORGIAN, J.

text:
    Robert Stanley POWELL, Appellant, v. Selene POWELL, Appellee.
    No. 4D09-4888.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.

      Robert Stanley Powell, Hollywood, pro se.
    No appearance for appellee.
   DAMOORGIAN, J.

Appellant, Robert Stanley Powell (“Husband”), appeals the final judgment in his dissolution of marriage action. Among other things, Husband contends that the trial court abused its discretion by awarding Appellee, Selene Powell (“Wife”), a portion of her attorney’s fees and in granting the Wife’s motion for contempt for failing to pay the fee award. We affirm the final judgment in all respects, except we reverse the attorney’s fee award and vacate the contempt order.

The Wife filed a petition for dissolution of marriage seeking, among other things, rehabilitative alimony and attorney’s fees. In its final judgment, the trial court dissolved the parties’ marriage, awarded rehabilitative alimony, ordered equitable distribution, and ordered the Husband to contribute to the Wife’s attorney’s fees. The Husband moved for reconsideration solely on the issue of attorney’s fees, alleging it was not possible for him to comply with the order due to his financial circumstances. In response, the Wife filed a motion for contempt to enforce the award of attorney’s fees, alleging the Husband had willfully failed to pay. Next, the Husband filed a renewed motion for reconsideration and opposition to the Wife’s motion for contempt. The trial court granted the Wife’s motion, and denied the Husband’s motion. The Husband claims that the trial court committed reversible error by ordering him to pay the Wife’s attorney’s fees without making the requisite findings concerning reasonableness and in granting the Wife’s motion for contempt to enforce the improper attorney’s fee award.

The law is well established that the trial court must set forth specific findings concerning the hourly rate, the number of hours reasonably expended and the appropriateness of reduction or enhancement factors. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985); see also Macarty v. Macarty, 29 So.3d 434, 435 (Fla. 2d DCA 2010) (“ ‘[A]n award of attorney’s fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings.’ ” (quoting Esaw v. Esaw, 965 So.2d 1261, 1265 (Fla. 2d DCA 2007))). “The presence of competent substantial evidence to support the award does not obviate the need for such specific findings.” Hoffay v. Hoffay, 555 So.2d 1309, 1310 (Fla. 1st DCA 1990).

Here, the final judgment contains no findings regarding the number of hours reasonably expended and the appropriateness of reduction or enhancement factors. Further, because we conclude the attorney’s fee award was improper, the Husband cannot be held in contempt for failure to pay the award.

Accordingly, we reverse the attorney’s fees award and vacate the contempt order for failing to pay the fees award. On remand, if the trial court again awards the Wife attorney’s fees, it must make the findings necessary to support the entitlement to and the amount of fees awarded.

Affirmed in part; Reversed in part and Remanded for further proceedings consistent with this opinion.

MAY and LEVINE, JJ., concur.


text:
    Michael E. WILSON, Appellant, v. STENOTYPE INSTITUTE OF JACKSONVILLE, INC., Appellee.
    No. 1D10-5506.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Michael E. Wilson, pro se, Appellant.
    Alfred L. Frith of The Frith Law Group, P.A., Orlando, for Appellee.
   PER CURIAM.

DISMISSED. See Rogers v. Cyrus, 941 So.2d 1196 (Fla. 1st DCA 2006).

KAHN, DAVIS, and HAWKES, JJ., concur.


author: CLARK, J.

text:
    Joshua EPPS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1263.
    District Court of Appeal of Florida, First District.
    March 2, 2011.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Challenging his conviction under section 790.23(l)(a), Florida Statutes, for possession of a firearm by convicted felon, the appellant contends that the statute violates his right to bear arms pursuant to the Second Amendment to the United States Constitution. While acknowledging that the statute has been upheld against prior constitutional challenges in cases such as Nelson v. State, 195 So.2d 853 (Fla.1967), the appellant maintains that the statute will no longer survive scrutiny in light of more recent decisions of the United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, - U.S. -, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In those cases the Supreme Court ruled that certain enactments in other jurisdictions, which broadly precluded the general populations there from possessing handguns, violated the Second Amendment in connection with the right to keep and use firearms within the home for self-defense. But that is not the circumstance under which the appellant was convicted in the present case. Furthermore, in both Heller and McDonald the Court expressly stated that the rulings in those cases should not be viewed as casting doubt on “prohibitions on the possession of firearms by felons....” Heller and McDonald thus do not undermine the Florida rulings in cases such as Nelson, with regard to the constitutionality of section 790.23(l)(a). See also Leon-Estrada v. Secretary, Dep’t of Corrections, 2010 WL 3069475 (M.D.Fla. August 4, 2010). The appellant’s conviction under section 790.23(l)(a) is therefore AFFIRMED.

KAHN and PADOVANO, JJ., concur.


author: KAHN, J.

text:
    Adam GARNER, Appellant, v. Buford O. LANGFORD, Appellee.
    No. 1D10-1032.
    District Court of Appeal of Florida, First District.
    March 3, 2011.

      Kelli Biferie Hastings of Law Office of Kelli B. Hastings, PLLC, Maitland, for Appellant.
    Clifford L. Davis, Montieello, for Appel-lee.
   KAHN, J.

Appellant challenges an adverse final judgment entered after the denial of a motion for continuance. We reverse and remand for a new trial, setting forth the unusual procedural development of the matter and the reasoning behind our decision.

PROCEDURAL BACKGROUND

The incident giving rise to this appeal occurred on the night of January 1, 2003, when Adam Garner struck a horse in the middle of the road as he drove home. Paralyzed from the neck down, Garner brought suit against appellee, Buford 0. Langford, on December 14, 2005, alleging Langford owned the horse and had acted negligently by failing to keep the animal properly fenced. On November 5, 2007, Garner died as a result of complications caused by injuries sustained in the accident. Before trial began, the parties stipulated that Garner’s mother, Elizabeth Delgado, was the proper plaintiff following her son’s death.

On January 13, 2009, the trial court ordered the parties to mediation. The parties agreed to settle the matter completely and therefore moved to continue a case management conference scheduled for May 12, 2009, to allow time to finalize the settlement, which was contingent upon Langford’s obtaining financing to pay appellant a sum of money. The court continued the case management conference until August 11, 2009, and scheduled a pretrial conference and jury trial for December 15, 2009, and December 28, 2009, respectively. In a pretrial order, the court ordered the parties to attend another round of mediation by November 1, 2009. Though Lang-ford had not yet executed the terms of the settlement, Garner’s counsel moved to dispense with any further mediation, citing the agreement reached after the initial mediation. The court denied the motion.

In late September, Garner’s trial counsel, K.E. Pantas, was diagnosed with a life-threatening illness. As a citizen of Greece, Pantas planned to relocate to the Hellenic Republic to access the state-provided medical care to which Greek citizens are entitled. By October 5, 2009, Pantas had closed his office and transferred his litigation files to other attorneys. On November 24, 2009, Pantas attempted formally to transfer the instant matter to Pedro Ma-laret, Esq., via a joint stipulation for substitution of counsel. On December 10, 2009, Pantas sought a continuance of the pretrial conference and trial, explaining that Malaret, whose son was scheduled for surgery on a conflicting date, could not represent appellant. Pantas urged that denial of a continuance would deprive his client of due process. Simultaneously, Pantas formally moved to withdraw as counsel for appellant, citing his illness. The court denied the motion for continuance and refused to substitute counsel, leaving Pantas as counsel of record.

The parties, by counsel, attended the pretrial conference on December 15, 2009. Present on behalf of Garner were Camilo Kafie, a former associate of Pantas, and Kelli Hastings, a colleague of Malaret. Kafie and Hastings again moved to continue the matter, noting that they would have just thirteen days to prepare for trial. Co-counsel argued appellant would be prejudiced through no fault of her own. The court nevertheless denied the motion.

In addition to those exigencies created by Pantas’ illness, counsel for appellant encountered other difficulties in preparing for trial. Counsel attempted to serve a subpoena for trial on S.H. Floyd, the trooper who had investigated the accident underlying this litigation. The process server, however, was unable to effect service, as Floyd was no longer employed with the Florida Highway Patrol, his last known address where service was attempted. Counsel also attempted to serve a subpoena on Dr. T.R. Baxter, Langford’s veterinarian, at a Newberry, Florida, address. Again, the process server could not effect service, because the address was no longer valid.

On the morning of trial, the trial judge held an in-chambers conference with the attorneys for both parties. Ms. Hastings again moved for a continuance of thirty days, arguing that appellant would be severely prejudiced if required to proceed without Floyd and Baxter as witnesses. Defense counsel responded that he did not oppose the request and also desired “to obtain photographs and the availability of two witnesses [Floyd and Baxter] that were either deposed or involved in the case prior to [his] involvement in the case.” Despite the seeming consensus, the court denied the motion, justifying its ruling by the considerable age of the case.

To facilitate an expeditious resolution of the matter, the court attempted to locate Floyd. Just prior to the conclusion of the pretrial conference, however, the bailiff advised the judge that he could not locate the trooper. After the first day of trial, appellant’s counsel attempted again to serve Floyd, to no avail. Dr. Baxter did not appear for the trial, either, even though Langford had listed the doctor as a witness. Counsel for plaintiff did not receive the depositions of these witnesses until December 23, 2009, five days prior to trial.

Before resting, plaintiffs counsel yet again moved for a continuance, presenting the affidavit of non-service of Dr. Baxter in support of the motion. In denying the request for continuance, the court observed that the plaintiff has a responsibility to subpoena her desired witnesses, but did not do so in this matter when the witness list was provided in October 2009. The jury returned a verdict finding that Langford had not been negligent in the maintenance of his fences. In consequence, the court entered a final judgment in favor of the defendant.

ANALYSIS

“The trial court’s determination of a motion for continuance is within [its] discretion and the court’s ruling thereon will not be disturbed ‘unless a palpable abuse of discretion is demonstrated.’ ” Robinson v. State, 561 So.2d 419, 420 (Fla. 1st DCA 1990) (quoting Smith v. State, 525 So.2d 477, 479 (Fla. 1st DCA 1988)). The decision to grant or deny a motion to continue is a matter resting within the sound discretion of the court. See Shands Teaching Hosp. and Clinics, Inc. v. Dunn, 977 So.2d 594, 599 (Fla. 1st DCA 2007). “A ruling on a motion for continuance is treated with a relatively high degree of deference, even among other kinds of discretionary decisions.” Id. Accordingly, we accord “even greater deference to continuance orders than is required of other discretionary rulings.” See id. Given this highly deferential standard, we acknowledge that “a reversal for failure to grant a motion for continuance would be justified only in very rare situations.” Id.

Courts also recognize, however, “cases in which the appellate court will have no alternative but to reverse, because the injustice caused by the denial of the motion outweighs the judicial policy of deferring to the trial judge.” Id.; Silverman v. Millner, 514 So.2d 77 (Fla. 3d DCA 1987) (acknowledging that “[sjpecial circumstances sometimes exist ... in which the denial of a motion for continuance creates an injustice for the movant”). An appellate court considers certain factors in determining whether a trial court has abused its discretion by denying a motion to continue:

Factors to be considered in determining whether the trial court abused its discretion in denying the motion for continuance include whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance.

Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998); see also Baron v. Baron, 941 So.2d 1233, 1235-36 (Fla. 2d DCA 2006); Fla. Fruit and Vegetable Ass’n v. Wells, 755 So.2d 828, 829 (Fla. 5th DCA 2000). This list is not exhaustive. See, e.g., Baron Auctioneer, Inc. v. Ball, 674 So.2d 212, 214 (Fla. 4th DCA 1996) (considering it an abuse of discretion “to deny such a motion [to continue] when it is based on the withdrawal of a party’s attorney for valid medical reasons within a few days of the tidal”); Ziegler v. Klein, 590 So.2d 1066, 1067 (Fla. 4th DCA 1991) (“[W]hen undisputed facts reveal that the physical condition of either counsel or client prevents fair and adequate presentation of a case, failure to grant a continuance is reversible error.”); Thompson v. Gen. Motors Corp., Inc., 439 So.2d 1012, 1013 (Fla. 2d DCA 1983) (holding that “the trial court departed from the essential requirements of law in refusing to grant [a] continuance” where attorney’s illness prevented appearance at trial and new counsel “could not possibly become prepared to try a case of this magnitude by the time of its scheduled date”).

The parties agree that Pantas’ illness and subsequent need to withdraw from the matter were unforeseen and attributable only to the vagaries of disease. The defendant party, Langford, did not oppose a continuance at trial and joined plaintiffs desire to authenticate photographs of the accident scene and ensure the availability of witnesses Floyd and Baxter, who were deposed before defense counsel became involved with the case. Based on the foregoing facts, we conclude that appellant has satisfied the second and third considerations set forth in the cases.

Our focus, therefore, is on the first factor, whether the movant suffered an injustice by denial of the motion. See Fleming, 710 So.2d at 603. The jury in this matter was asked to decide two threshold questions: (1) whether the defendant owned the horse involved in the automobile accident with plaintiff; and (2) whether the defendant carelessly or negligently permitted his livestock to run at large on a public road, resulting in injury to the plaintiff. The jury returned a verdict in favor of the defendant, affirming that defendant owned the horse involved in the accident, but declining to find that defendant had been negligent.

Appellant asserts that she suffered an injustice because the denial of the motion effectively deprived her case of the testimony of witnesses Floyd and Baxter. Appellant concedes that additional evidence on the question of ownership of the horse would not be useful to her case, but urges persuasively that one or both unavailable witnesses can offer new testimony as it pertains to the question of negligence, on which appellant lost at trial.

The case, like Dunn, presents the “very rare situation[]” justifying reversal. See 977 So.2d at 599. The record indicates that Floyd responded to the scene of the accident, took pictures of the deceased animal, and prepared an investigation report in connection therewith. The testimony of trooper Floyd therefore promised the most contemporaneous and perhaps most objective account of the accident scene of anyone available. We need not speculate as to the exact effect of the trooper’s testimony, but infer, based on his investigation of the incident, that the trooper can offer some perspective as to the condition of the fencing in and around Langford’s property at the time of the collision. Accordingly, the denial of the motion for continuance worked an injustice on the appellant, satisfying the first of the factors. See Silverman, 514 So.2d at 79 (reversing order denying motion for continuance because testimony of defendant, unavailable because of illness, was “necessary for a fair and adequate presentation of the defendant’s case, as the defendant was the witness most able to present testimony on [vital] matters”).

Considering the need for balance, we respectfully do not see that the trial court could cite any sufficiently just reason to deny the motion, even given the age of the case. Pantas had fallen ill and Malaret, his intended replacement, also encountered extenuating circumstances not of his making. See Dunn, 977 So.2d at 600 (concluding hospital was not responsible for pregnancy of key witness, which kept her from testifying at trial on hospital’s behalf); Silverman, 514 So.2d at 79 (determining that “defendant’s illness and consequent unavailability for trial were unforeseeable, unlike the circumstances in other cases in which the attorneys could have anticipated that their clients or witnesses would not be available for trial”). By the time Kafie and Hastings assumed responsibility for the matter on or around December 15, 2009, substitute counsel had but thirteen days, coinciding with the holiday season, to subpoena and secure the appearance of witnesses and prepare a theory of the case. Counsel for Langford, moreover, not only did not oppose the request for continuance, but joined it. See Silverman, 514 So.2d at 78 (highlighting court’s obligation to rectify injustice visited upon moving party by denial of motion for continuance, particularly “where the opposing party would suffer no injury or great inconvenience as a result of [the] continuance”). Such a unique cascade of events overcomes the trial court’s legitimate concern to dispose of this case. The judgment is REVERSED, and the matter REMANDED for a new trial.

WOLF and WEBSTER, JJ., concur.

       Despite the apparent stipulation to substitute Delgado, who was appointed administrator of the Garner estate, as plaintiff, the change was never effectuated. This must be corrected on remand.


author: BENTON, C.J.

text:
    Shannon MURPHY, Appellant, v. Katherine REYNOLDS, Appellee.
    No. 1D09-5867.
    District Court of Appeal of Florida, First District.
    March 3, 2011.
    Bradley G. Johnson of Johnson, Green & Hargraves, Milton, for Appellant.
    Katherine Reynolds, pro se, Appellee.
   BENTON, C.J.

Shannon Murphy appeals a final injunction for protection against repeat violence, entered against her at the behest of Katherine Reynolds. Because the trial court’s finding that Ms. Murphy committed “repeat violence” against Ms. Reynolds lacks competent, substantial evidence in support, we reverse.

The trial court decreed that the injunction remain in place until October 27, 2010, when it expired. This case is not moot, however, because collateral legal consequences flowing from such an injunction outlast the injunction itself. See Rodman v. Rodman, 48 So.3d 1022, 1022 (Fla. 1st DCA 2010) (“[I]njunctions for protection against domestic violence are an exception to the usual rules of mootness because of the collateral legal consequences that flow from such an injunction.”); accord Boyles v. Tiefenthaler, 810 So.2d 1041, 1041 (Fla. 2d DCA 2002) (finding an appeal of an injunction for protection against repeat violence was not moot, as “issuance of the injunction prevented] [appellant] from carrying a gun under federal law and thus affect[ed] her career in law enforcement”). But see Bevan v. Wolfson, 638 So.2d 527, 527 (Fla. 2d DCA 1994) (citing Godwin v. State, 593 So.2d 211, 212 (Fla.1992)) (dismissing an appeal of an expired repeat violence injunction on grounds none of the three exceptions to mootness applied, including collateral legal consequences).

Section 784.046(2), Florida Statutes (2009), creates a cause of action for “an injunction for protection in cases of repeat violence.” To prove the cause of action, “[competent, substantial evidence must support the trial court’s findings of two incidents of repeat violence.” Terrell v. Thompson, 935 So.2d 592, 593 (Fla. 1st DCA 2006). “Repeat violence” is defined as “two incidents of violence or stalking committed by the respondent.” § 784.046(l)(b), Fla. Stat. (2009). “Violence” means “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment.” § 784.046(l)(a), Fla. Stat. (2009). “Stalking” occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.” § 784.048(2), Fla. Stat. (2009). “Harassment” is “a course of conduct directed at a specific person that causes substantial emotional distress ... and serves no legitimate purpose.” § 784.048(l)(a), Fla. Stat. (2009). “Cyberstalking” entails harassment by means of electronic communications. See § 784.048(l)(d), Fla. Stat. (2009).

Ms. Reynolds set out to prove “cyber-stalking” as grounds for the injunction, alleging Ms. Murphy sent her an offensive email, hacked into her email accounts, deleted all of her emails, and changed her email signature block to include disparaging remarks. But Ms. Reynolds did not introduce evidence that linked Ms. Murphy to the cyberstalking incidents. No competent substantial evidence identified Ms. Murphy as the perpetrator of these acts.

Reversed.

DAVIS and THOMAS, JJ., concur.


text:
    HORACE MANN INSURANCE COMPANY, Appellant, v. Allison N. CHASE, individually and as Co-Personal Representative of the Estate of Richard Chase, deceased, Appellee.
    No. 1D10-5764.
    District Court of Appeal of Florida, First District.
    March 3, 2011.
    Tammy De Soto Cicchetti and Michael A. Cinquino of the Cicchetti Law Firm, Tallahassee, for Appellant.
    Benjamin E. Richard of Pajcic & Pajcic, P.A., Jacksonville, for Appellee.
   PER CURIAM.

DISMISSED. See Workmen’s Auto Ins. Co. v. Franz, 24 So.3d 638, 640 (Fla. 2d DCA 2009).

KAHN, DAVIS, and HAWKES, JJ, concur.


author: THOMAS, J.

text:
    Christina WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5419.
    District Court of Appeal of Florida, First District.
    March 3, 2011.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   THOMAS, J.

Petitioner seeks a writ of certiorari to review an order of the circuit court which, while sitting in its appellate capacity, affirmed a county court order denying her motion to suppress and affirming her DUI conviction. We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(B). Petitioner argues that the denial of her motion to suppress was error, because it was based on evidence that was not presented to the trial court until after the evidentiary hearing; thus, her due process rights were violated because she was not afforded the opportunity to challenge the authenticity, continued validity, or statutory compliance of the evidence. For the reasons explained below, we agree and grant the petition.

Factual Background,

Petitioner was arrested for driving under the influence by the Jacksonville Sheriffs Office (JSO). This arrest was precipitated by a traffic stop conducted by an off-duty Atlantic Beach police officer while driving home in a marked patrol vehicle after his shift ended. The officer was outside of the Atlantic Beach city limits from the time he first observed Petitioner up through the time he pulled her over. Upon stopping Petitioner, the officer called for back-up from the JSO and then proceeded to conduct the traffic stop based on his suspicion that Petitioner was driving under the influence. The officer detained Petitioner until a JSO deputy arrived. He informed the deputy of his observations and then left the scene. The deputy conducted an investigation, which led to Petitioner’s arrest.

In the county court proceedings, Petitioner sought to suppress all evidence flowing from the traffic stop, asserting that the traffic stop was conducted by an off-duty police officer acting outside of his jurisdiction, rendering the stop illegal. Near the conclusion of the evidentiary hearing, the State announced its belief of a Mutual Assistance Agreement (Agreement) between the Atlantic Beach Police Department and the JSO which authorized the police officer to conduct the traffic stop. The State requested leave to “supplement the evidence” and submit the Agreement. The court expressed reservations because it entailed presenting post-hearing evidence, and asked the State what it wanted; the State responded that it would “like to be able to submit the case law to you.... ” The court agreed, and gave Petitioner leave to supplement a memorandum of law. The court made no explicit ruling on whether the State could submit the Agreement.

The State submitted its memorandum to the trial court and attached the Agreement. Petitioner’s response included a motion to strike the Agreement because it was not presented at the hearing and was not properly entered into evidence. In its order denying Petitioner’s motion, the court noted that although the Agreement was not presented at the time of the hearing, the Agreement was considered in reaching its decision. The trial court also denied the motion based on the State’s argument that the Atlantic Beach officer’s actions were akin to a citizen’s arrest. Subsequently, Petitioner entered a no contest plea subject to her right to appeal.

Petitioner appealed the trial court’s denial of her motion to suppress to the circuit court. In its order, the circuit court rejected the trial court’s findings with respect to a citizen’s arrest, but affirmed the denial of Petitioner’s motion to suppress based on the Agreement. The court addressed Petitioner’s argument that the trial court erred by considering the Agreement, finding:

While the State’s actions were proeedurally improper ... this error was harmless ... because this court conducts a de novo review of the meaning of the terms in the mutual aid agreement, as it would whenever the terms of an agreement are at issue. Thus, this court has had the opportunity to consider Appellant’s arguments fully and does not have to ... defer to the trial court’s ruling on the scope of the mutual aid agreement and its effect on the legality of Appellant’s arrest.

The circuit court also found that the State was not required to authenticate the document before submitting it to the trial court because “the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions.” The court further found that the trial court was free to accept the Agreement, examine it, and give it such weight as he thought it deserved. The circuit court affirmed the trial court’s denial of Petitioner’s motion to suppress.

Analysis

Generally, when reviewing decisions by circuit courts acting in their appellate capacity, this court considers whether the circuit court departed from the essential requirements of law. As explained in Ivey v. Allstate Insurance Co., however:

In Haines City Community Development v. Heggs, 658 So.2d 523, 525 (Fla.1995), we clarified and narrowed the scope of common law certiorari jurisdiction by noting that “[a] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.” Instead, we held that the proper inquiry under cer-tiorari review is limited to whether the circuit court afforded procedural due process and whether it applied the correct law.

774 So.2d 679, 682 (Fla.2000) (emphasis added). See also Combs v. State, 436 So.2d 93, 95 (Fla.1983) (holding that, when considering common law certiorari, appellate courts reviewing orders of circuit courts acting in their appellate capacity should be primarily concerned with the seriousness of the error, not the mere existence of error, and should exercise cer-tiorari discretion only when there has been a violation of clearly established principles of law resulting in a miscarriage of justice). “[District courts should use this discretion cautiously so as to avert the possibility of common-law certiorari being used as a vehicle to obtain a second appeal.” Id. at 96.

Here, the circuit court acknowledged that the State’s submission of the Agreement after the close of evidence was improper because it “foreclosed Appellant’s counsel at the trial level from meaningfully considering its legal effect on the officer’s jurisdiction and making substantive arguments to the trial court.... ” This amounts to an acknowledgment that Petitioner was denied due process, yet the circuit court ruled that the error was harmless. We cannot agree under the test of State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). Although harmless error is generally a valid basis for affirming an otherwise tainted judgment, this principle reaches its limit when it results in a miscarriage of justice. See § 59.041, Fla. Stat. (providing that judgments in civil or criminal cases may not be set aside due to improper admission of evidence unless the error results in a miscarriage of justice). Considering the circuit court’s rejection of the State’s citizen’s arrest theory, and the dis-positive nature of all the evidence that flowed from the traffic stop, it is clear that Petitioner would not have been adjudicated guilty were it not for the improper consideration of the Agreement. In re J.M.M., 795 So.2d 1034, 1036 (Fla. 2d DCA 2001) (denial of due process to consider evidence not addressed at trial). This denial of due process resulted in a miscarriage of justice.

We are mindful of the strict limits imposed on us when reviewing orders rendered by the circuit courts acting in their appellate role. Here, however, because the trial court’s actions deprived Petitioner of her due process right to challenge the Agreement’s authenticity, continued operational effect, and statutory compliance, Petitioner is entitled to the extraordinary relief of certiorari.

Conclusion

Petition for writ of certiorari is GRANTED. The order denying Petitioner’s motion to suppress is quashed, and we remand for proceedings consistent with this decision.

KAHN and ROWE, JJ., concur.


text:
    Daniela CONNELLY, as parent and best friend of Kristen Britter, Appellant, v. SHANG HAI CHINESE RESTAURANT AND LOUNGE, INC., Chin Lin and Kye Lin, Appellees.
    No. 1D10-6312.
    District Court of Appeal of Florida, First District.
    March 3, 2011.
    John Wellington Wesley, Ft. Walton Beach, for Appellant.
    Andrew A. Wood of Pleat & Perry, Des-tín, for Appellees.
   PER CURIAM.

DISMISSED. See Hickox v. Taylor, 933 So.2d 675 (Fla. 1st DCA 2006). The appellant’s Motion to Relinquish Jurisdiction to Obtain Final Judgment, filed on January 21, 2011, is denied.

LEWIS, CLARK, and ROWE, JJ., concur.


text:
    Joseph Edward FARLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-415.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2011.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Joseph Farley appeals the denial of a dispositive motion to suppress. Finding no error, we affirm. See Ortiz v. State, 24 So.3d 596 (Fla. 5th DCA 2009); P.B.P. v. State, 955 So.2d 618 (Fla. 2d DCA 2007).

We treat Farley’s motion to vacate the trial court’s order for restitution as a supplemental brief following the amendment of his notice of appeal. Although the trial court reserved jurisdiction to determine restitution, because it conducted the hearing and entered the order after a notice of appeal had been filed, that order is without effect. See Nguyen v. State, 655 So.2d 1249, 1249-50 (Fla. 1st DCA 1995). Upon remand, the trial court may conduct a new hearing and again impose restitution.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GRIFFIN, TORPY and COHEN, JJ„ concur.


author: PALMER, J.

text:
    Brock SHADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1981.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2011.
    Brock R. Shade, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Brock Shade (defendant) appeals the order entered by the tidal coui't granting in part and denying in part his motion for the return of personal property. Determining that the trial court erred in deciding the motion without conducting an evidentiary hearing at which the defendant was allowed to be present, we reverse.

While the defendant was incarcerated on numerous drug related convictions, he filed a motion for the return of personal property seized by law enforcement pursuant to a search of his home and held by the Her-nando County Sheriffs Office. The trial court conducted multiple hearings on the defendant’s motion, but did so without the defendant being present, in spite of his requests to be present. Ultimately, the trial court entered an order specifically listing certain items of personal property to be returned to the defendant, and certain other items which were not to be returned because they were contraband.

The defendant contends that the trial court erred in failing to order the return of all the property requested in his motion. He claims that all of the property was legitimately in his possession and had been purchased with funds which were lawfully earned by him. In a related claim, the defendant argues that the trial court should have held an evidentiary hearing with him present. We agree.

Trial courts possess the inherent authority to rule upon motions seeking the return of property seized by law enforcement in connection with a criminal investigation once the trial court takes jurisdiction over the criminal proceedings arising from said investigation. See Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993).

In Benedetti v. State, 584 So.2d 203 (Fla. 2d DCA 1991), the Second District addressed the issue of whether an incarcerated defendant had the right to attend a hearing held on the issue of seized property:

A defendant, [...] has the right to notice and an opportunity to be heard before he is deprived of his possessions. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The appellants were not afforded these rights. The appellants, through their attorney, were only notified that the state objected to the return of property, not that a hearing was going to be held concerning the payment of restitution and the forfeiture of property. The court denied the appellants’ request to be present at the hearing, and they were, therefore, not given the opportunity to present evidence in opposition to the state’s motion. Since the appellants were deprived of their due process rights, we must reverse and remand for a hearing where such rights are afforded them.

Id. at 204. Similarly, in Bolden v. State, 875 So.2d 780 (Fla. 2d DCA 2004), the Second District addressed the fact that the defendant was not present at the proceedings concerning his motion for the return of property. The court stated:

Because consideration of a motion for the return of property is governed by procedures similar to those used in post-conviction proceedings, general principles of postconviction relief govern the necessity for the defendant’s presence. A defendant is not entitled to be present as a matter of right; however, when “there are questions of fact within the defendant’s own knowledge which must be resolved, the defendant must be afforded the opportunity to testify and cross-examine witnesses.” Harrell v. State, 458 So.2d 901, 902 (Fla. 2d DCA 1984)(citing Alfonso v. State, 319 So.2d 49, 50 (Fla. 2d DCA 1975)).

Id. at 783.

Here, the trial court’s order denying in part the defendant’s motion for the return of property is reversed and this matter remanded for an evidentiary hearing on the question of fact as to whether the items which were not returned were properly withheld. The defendant must be afforded the opportunity to be present and testify at said hearing.

REVERSED and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.

      . The items not returned were not items which could be determined on their face to be contraband (such as illegal drugs), but rather, items which might or might not be contraband (such as TV monitors, computers, and surveillance equipment).


text:
    Nancy ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2483.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2011.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

After a full and independent review of the record, we affirm Appellant’s judgments and sentences without discussion in this Anders appeal. However, we find one matter in need of correction. An issue as to Appellant’s competence arose after she entered her pleas below. Ultimately, the trial judge conducted a competency hearing at which he found Appellant to be competent before proceeding to sentencing. However, no written competency order appears in the record. See Fla. R.Crim. P. 3.212(b) (“If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.”). Accordingly, we remand this matter with directions that the trial judge enter an order memorializing his oral ruling nunc pro tunc to the date of the competency hearing. See, e.g., Childs v. State, 44 So.3d 216 (Fla. 2d DCA 2010).

AFFIRMED; REMANDED with directions.

GRIFFIN, LAWSON and EVANDER, JJ., concur.

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


text:
    Quiana A. FELDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-4142.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2011.
    Quiana A. Felders, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner seeks a belated appeal based on ineffectiveness of appellate counsel. We deny the Petition in all respects except for Petitioner’s claim that counsel should have challenged the minimum mandatory component of her sentence on double jeopardy grounds. Petitioner was initially sentenced for conspiracy to traffic in cocaine without imposition of the minimum mandatory penalty. The State did not object. The court later resentenced Petitioner at the behest of the State to impose the minimum mandatory penalty. This aspect of Petitioner’s sentence was not challenged on direct appeal as a double jeopardy violation. The State concedes that Petitioner is entitled to relief from the minimum mandatory. See Gray v. State, 915 So.2d 254 (Fla. 5th DCA 2005) (because minimum mandatory for drug trafficking may be waived, sentence not illegal where State fails to object to omission of minimum mandatory at initial sentencing; resen-tencing to impose minimum mandatory under such circumstances violates double jeopardy); see also Delemos v. State, 969 So.2d 544, 551 (Fla. 2d DCA 2007).

Accordingly, we grant the Petition for the limited purpose of challenging the minimum mandatory sentence and consider the appeal without further briefing. Based upon the State’s proper concession, we reverse the sentence and remand with directions to strike the minimum mandatory term, effectively reinstating the sentence originally orally pronounced and imposed.

AFFIRMED in part; REVERSED in part and REMANDED.

PALMER, TORPY and EVANDER, JJ., concur.