author: WARNER, J.

text:
    Miakkar BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1566.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.

      Antony P. Ryan, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, convicted of burglary and grand theft, challenges his conviction for grand theft. He claims that the evidence was insufficient to prove that he was in possession of the stolen items, and nor, he argues, did the state identify specific items of jewelry or their values. As to the latter issue, the matter was not preserved for appeal. As to the former, we conclude that the evidence was sufficient to sustain the conviction. We thus affirm.

At the non-jury trial, victim Richard Trask testified that at the time of the burglary, he and his wife lived in a ground floor unit at a condominium in Palm Beach Gardens. They were in the process of moving and had boxes in the unit, but on the morning of the burglary everything was neat and orderly when they both left to feed their horse. No jewelry was out and the door was locked when they left.

When they returned about forty-five minutes later, there was an unfamiliar car backed into one of the parking spots right next to their unit, which Mr. Trask noticed because he knew his neighbors’ cars. Mr. Trask testified that as he was coming around the corner toward the front door to his unit, he “saw the front door opening and ... saw the criminal coming out [the] front door.” He did not recognize the person but was able to describe his physical features and that he was wearing “very distinct bright yellow T-shirt with the number 85” on the back of it. Mr. Trask identified appellant as the man leaving his house.

Mr. Trask was about ten to fifteen feet away from the door at that point. Mr. Trask yelled “hey” to the man as he left, and the man turned around and made an obscene gesture. Mr. Trask was able to see his face at that point and stated that “[h]e looked like he possibly was carrying something,” since “[h]e had his arms together” tight against his body. Trask, however, did not see any specific item in his hands. Appellant then fled around the side of the building.

Trask started to chase appellant but then returned to the condominium where his wife was calling 911. They discovered that their place had been ransacked with drawers opened and their belongings thrown around. Trask then jumped in his car to chase appellant. He saw appellant running along a canal which ran alongside of the condominium complex. Trask lost visual contact with him and returned to the condominium. Later, the couple met with Palm Beach Gardens Police Department officers, who had apprehended a suspect about a quarter mile from the condo building very shortly thereafter. Mr. Trask was able to identify him immediately.

After he returned to his unit, Trask observed pry marks on the front door, and some of the wood was broken. Both noted that Mrs. Trask’s jewelry box was upside down on the bed. All of her heirloom jewelry from her grandmother plus her wedding ring were gone. These included rings, necklaces, and bracelets all appraised at approximately $18,000. The box had been in its place with all the jewelry inside when they left that morning. In addition $500 in cash was missing from the bedroom. They never recovered any of the jewelry or the cash.

Two officers testified and described their pursuit and apprehension of appellant, as well as the Trasks’ positive and immediate identification of him. They also inspected the Trasks’ unit and took pictures, which were admitted into evidence.

At the close of the state’s case, defense counsel moved for judgment of acquittal, arguing that the state had not shown that appellant was ever in possession of any stolen property. He also contended that the state had proved nothing more than the appellant’s proximity to the unit. The court denied the motion.

Appellant testified in his defense. At the time of the incident, he was employed by an escort agency, which required him to wait for the girls outside the residence in which they were on call. He was at the Trasks’ condominium building that day for that purpose. When he saw Mr. Trask, he walked away, because he was smoking marijuana while waiting. He said he was standing by their door and never entered the apartment; he denied taking anything from the apartment. Appellant claimed that he did not tell the officers about his job because “it’s like an undercover prostitution thing.”

The trial court found appellant guilty of both burglary and grand theft. It sentenced him to fifteen years for the burglary as a prison releasee reoffender and five years for the grand theft, consecutive to each other and to any other term that appellant was currently serving from any other convictions.

He appealed his convictions, and this court affirmed. Brown v. State, 993 So.2d 534 (Fla. 4th DCA 2008). He then filed a petition alleging ineffective assistance of appellate counsel, pursuant to rule 9.141(c), Florida Rules of Appellate Procedure, alleging four grounds. This court granted appellant’s petition in part, limiting the issue on appeal to whether the trial court erred in denying the motion for judgment of acquittal on the charge of grand theft.

This court reviews de novo the sufficiency of evidence to support a ver-diet. Valentin v. State, 974 So.2d 629, 630 (Fla. 4th DCA 2008). In a circumstantial evidence case, “[a]lthough the state is not required to rebut every variation of events which may be inferred from the evidence, it is required to present competent, substantial evidence which is inconsistent with the defendant’s theory of events.” Lesane v. State, 895 So.2d 1231, 1233 (Fla. 4th DCA 2005) (citing State v. Law, 559 So.2d 187, 189 (Fla.1989)).

To prove the crime of theft, the state was required to prove that appellant knowingly obtained or used, or endeavored to obtain or use, the Trasks’ property with intent to permanently or temporarily deprive the Trasks of its use. § 812.014(l)(a), Fla. Stat. (2004). Appellant argues that the state proved only his presence at the condominium, and “mere presence at the scene of the crime [is] insufficient to establish participation in the offense.” Garcia v. State, 899 So.2d 447, 450 (Fla. 4th DCA 2005). There was no direct evidence that he possessed any property of the Trasks, which in this case would be the jewelry and the cash.

The state’s case, however, rested on more than “mere presence” at the scene. Mr. Trask observed appellant exiting the condominium, from which the Trasks had been absent for only forty-five minutes. Appellant was a stranger. Mr. Trask believed that appellant appeared to be holding something, although he couldn’t identify anything specific. However, when the Trasks entered their condominium, they found it ransacked and the jewelry box turned over with all of the valuable items and the cash gone. Those items had been there when the Trasks left their unit. Pry marks on the front door evidenced a forced entry. Equally important, appellant fled the scene, and flight is evidence of consciousness of guilt. Straight v. State, 397 So.2d 903, 908 (Fla.1981).

Appellant’s reasonable hypothesis of innocence to which he testified was that he was not in the condominium but simply at the complex waiting for an escort who was with a client. His story, however, was directly contradicted by Mr. Trask who definitively testified that he observed appellant exiting his apartment. Therefore, the state presented evidence inconsistent with appellant’s reasonable hypothesis. Law, 559 So.2d at 189. As there was sufficient evidence to support the grand theft charge, the court did not err in denying the motion for judgment of acquittal, either at the close of the state’s case or the close of all the evidence.

Appellant primarily relies on Jenkins v. State, 342 So.2d 1097 (Fla. 1st DCA 1977), Broner v. State, 559 So.2d 745 (Fla. 2d DCA 1990), and S.R.W. v. State, 725 So.2d 1140 (Fla. 2d DCA 1998), to support his position that the evidence was insufficient to sustain his conviction. Although in each case the appellate court found the evidence insufficient to support a conviction for grand theft, we find these cases distinguishable. In Jenkins, 342 So.2d at 1097, the defendant was invited into the victim’s residence. When the victim left the room for a few moments and returned, Jenkins was gone and an envelope containing the victim’s social security check was missing. In Broner, 559 So.2d at 746, the defendant visited his aunt’s home. The aunt went upstairs for a period of time. When she returned, Broner was gone, as was her videocassette player. A witness saw Broner leave the residence without anything in his hands. One would expect that someone would notice an item as large as a videocassette player had Broner taken it. In S.R.W., 725 So.2d at 1140, a pager was found to be missing when S.R.W. was in the home of her friend. S.R.W. helped her friend look for the pager but it was never found. In each of these cases, and in contrast to the facts of this case, the defendant was either a friend or relative invited into the home. After the defendant left, an item was found to be missing. In none of these cases was there evidence of forced entry, burglary, ransacking of the home, or flight.

We also distinguish M.E.R. v. State, 993 So.2d 1145 (Fla. 2d DCA 2008), which was not cited by the parties but is similar to the foregoing cases. There, a witness saw M.E.R. hanging around an apartment building where the victimized family lived. The family left around 2:00 p.m., and the witness saw M.E.R., who was a former boyfriend of the daughter in the family, enter the apartment. He exited later with his shirt off and wrapped under his arm. The witness could not tell if there was anything in the shirt. Several hours later the family returned home and the mother discovered that three pairs of her shoes and various electronic games, a Play Station, clothing, and a cell phone were' missing. M.E.R. had been seen hanging out in the apartment breezeway with several other youths. The court held that the evidence was insufficient to convict M.E.R. of grand theft, because he had not been seen with any of the stolen items, and any of the other children with him could have entered the apartment and taken the items. The state charged M.E.R. with the theft only of the shoes and the Play Station. As in Broner, these items were of a size that would have been noticed by the witness who saw M.E.R. exit the apartment. In M.E.R., as in the other cases, there was no forcible entry, no ransacking of the apartment, and no flight.

Appellant also claims that the state failed to offer sufficient proof of the value of the items stolen. This issue has not been preserved for appeal. Not only was no objection made to the testimony of valuation of the items stolen, but defense counsel did not move for a judgment of acquittal on this ground. “To preserve an argument for appeal, it must be asserted as the legal ground for the objection, exception, or motion below.” Woods v. State, 733 So.2d 980, 984 (Fla.1999). See also Fla. R.Crim. P. 3.380(b) (motion for judgment of acquittal must fully set forth the grounds on which it is based).

For the foregoing reasons, we affirm the grand theft conviction.

STEVENSON and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Julie AUXIER, Petitioner, v. JEROME GOLDEN CENTER FOR BEHAVIORAL HEALTH and Alpert Jewish Family & Children Services, the plenary guardian of the ward, Julie Auxier, Respondents.
    No. 4D12-1019.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.

      Carey Haughwout, Public Defender and Ellen Griffin, Assistant Public Defender, West Palm Beach, for petitioner.
    Mitchell I. Kitroser of Law Office of Mitchell Kitroser, P.A., Palm Beach Gardens, for respondent Alpert Jewish Family & Children Services.
   PER CURIAM.

The public defender’s office on behalf of a Baker Act patient petitions this court for a writ of certiorari seeking review of an order discharging the public defender’s office from representing the patient in the Baker Act proceedings.

The public defender’s office was discharged as counsel for the patient upon an ore tenus motion by counsel for the patient’s guardian. The magistrate accepted the argument that because the patient had a plenary guardian, her rights had been transferred to her guardian and counsel for the guardian would represent her in the Baker Act proceedings. The patient was not present at the hearing and she did not have independent counsel. After hearing evidence, with the guardian’s consent, the patient was committed to a secure facility for thirty days.

We grant this petition because the magistrate and the circuit court departed from the essential requirements of law in discharging the public defender’s office. Section 394.467(4), Florida Statutes (2011), requires appointment of the public defender’s office to represent the patient in involuntary civil commitment proceedings “unless the person is otherwise represented by counsel.” The guardian’s attorney represents the guardian, not the ward.

Contrary to the guardian’s arguments, the ward retains a right to counsel. § 744.3215(1)(£), Fla. Stat. (2011); see also In re Beverly, 342 So.2d 481, 489 (Fla. 1977). A guardian may not commit a ward to an institution pursuant to chapter 394 without formal placement proceedings. § 744.3215(4)(a), Fla. Stat. (2011). In addition, before a guardian may exercise “extraordinary authority,” which includes civil commitment under chapter 394, “the court must ... [a]ppoint an independent attorney to act on the incapacitated person’s behalf, and the attorney must have the opportunity to meet with the person and to present evidence and cross-examine witnesses at any hearing on the petition for authority to act.” § 744.3725(1), Fla. Stat. (2011). As this court has recognized in another context, the “guarantee of the assistance of counsel includes the right to counsel whose loyalty is not divided between clients with conflicting interests.” Toneatti v. State, 805 So.2d 112, 114 (Fla. 4th DCA 2002).

Although Handley v. Dennis, 642 So.2d 115, 116-18 (Fla. 1st DCA 1994), addresses issues beyond the scope of this petition, we agree with the First District’s discussion of the role of the public defender in Baker Act proceedings:

The Public Defender has a duty under the law to represent indigent mental patients in hearings to determine the need for continued involuntary placement. § 394.467(4)(e) and § 27.51(l)(d) Fla. Stat. (1991). In such cases, the duty of the Public Defender is a legal and professional duty that is owed to the patient as a client. The Public Defender serves as an independent advocate for the patient, not as a neutral party charged with the responsibility of determining the best interests of the patient or the needs of society.
Nothing in the guardianship law can change this obligation the Public Defender has to her client.
If the patient wishes to be released or transferred and if there is a basis for that request, the Public Defender has a duty to advocate the cause of the patient.
Likewise, the Public Defender may argue for the release [or] transfer of a Baker Act patient even if that is not the wish of the patient’s guardian.

Petitioner is entitled to representation by independent counsel, free from any conflict of interest. She was denied this right. Accordingly, the circuit court order involuntarily committing her and discharging the public defender’s office is quashed.

Petition Granted.

WARNER, CIKLIN and LEVINE, JJ„ concur.


author: CIKLIN, J.

text:
    J.R.B., Appellant, v. J.L.B., J.A.B. and M.B.B., Appellees.
    No. 4D11-3168.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.
    Rehearing Denied May 16, 2012.
    Anne Lynch of Anne Lynch, P.A., Palm Beach Gardens, for appellant.
    Robert L. Bogen of the Law Offices of Robert L. Bogen, P.A., Boca Raton, for appellees J.L.B. and J.A.B.
   CIKLIN, J.

J.R.B. (the “father”) challenges an order granting temporary custody of his two minor daughters to his parents (the “grandparents”). The father contends that the grandparents lacked standing to petition for temporary custody under chapter 751, Florida Statutes, because at the time the petition was filed, the children were not living with the grandparents but were simply visiting them for the summer pursuant to court-ordered visitation. We agree and reverse.

The father was awarded full custody of his two minor daughters following his divorce from the minor children’s mother. In October 2005, the grandparents were awarded visitation rights by a Minnesota court. In January 2011, after the father moved to Florida, the grandparents had the Minnesota order registered in Florida pursuant to section 88.6051, Florida Statutes (2010).

In March 2011, the grandparents filed a motion for contempt alleging that the father had wrongfully and purposely withheld visitation from them during the court-ordered time. The trial court granted the grandparents’ contempt motion and ordered make-up visitation from June 20 until August 19, 2011.

On August 16, 2011, the grandparents filed an emergency petition for temporary custody of their two minor grandchildren pursuant to section 751.03, Florida Statutes (2011), which allows extended family members to seek temporary custody of minor children. They also requested that the trial court hold a hearing on their petition before August 19, 2011 — the day they were supposed to return the children to their father.

On August 19, 2011, the trial court held a hearing on the grandparents’ petition. At the beginning of the hearing, the father moved the trial court to dismiss the grandparents’ petition for lack of standing. The father argued that the grandparents lacked standing to seek temporary custody of the minor children pursuant to chapter 751 because the children were not living with the grandparents at the time. The trial court effectively denied the motion by continuing to hear testimony on the grandparents’ petition for temporary custody.

Following the hearing, the trial court entered an order granting temporary custody of the minor children to the grandparents. The trial court found that the grandparents had shown “beyond clear and convincing evidence that alcohol is a major factor in hindering the [father] from being a responsible safe parent.” The trial court made additional findings of abuse and neglect by the father.

On appeal, the father argues that the trial court lacked jurisdiction to award temporary custody to the grandparents under chapter 751 because, at the time the petition was filed, the children were not living with the grandparents. Rather, the children were merely visiting the grandparents pursuant to court-ordered visitation. We agree.

“This is an issue of statutory interpretation, which is subject to a de novo standard of review.” D.A. v. State, 11 So.3d 423, 423 (Fla. 4th DCA 2009). Chapter 751 permits grandparents (as extended family members) to seek temporary custody of a minor child without the parents’ consent by demonstrating “that the parents have abused, abandoned, or neglected the child as defined in chapter 39.” § 751.03(9), Fla. Stat. (2011).

Section 751.02, however, limits such petitions, in the absence of parental consent, to an “extended family member who is caring full time for the child in the role of a substitute parent and with whom the child is presently living.” § 751.02(l)(b), Fla. Stat. (2011). The statute does not define the terms “role of a substitute parent” or “presently living,” but the terms are clear and unambiguous.

In the instant case, the grandparents were not caring full time for the children in the role of substitute parents, nor were the children “presently living” with the grandparents when the petition was filed. The children were merely visiting with them pursuant to court-ordered visitation. In fact, the trial court acknowledged in its order granting the grandparents’ petition for temporary custody that it had previously ordered “make up visitation” for the grandparents because the father “had wrongfully and purposefully withheld visitation from the [grandparents] during their court ordered time.” As such, the grandparents did not have standing to file the chapter 751 petition.

Accordingly, we reverse the order granting temporary custody of the minor children to the grandparents and remand for the trial court to grant the father’s motion to dismiss the grandparents’ petition for lack of standing. Our reversal renders the remainder of the father’s arguments moot.

Our decision does not preclude the grandparents or the Department of Children and Families from bringing a dependency action pursuant to chapter 39, Florida Statutes. Nor does our decision prohibit the parents from consenting to the grandparents’ temporary or concurrent custody of the minor children pursuant to section 751.02(l)(a).

Reversed and remanded with instructions.

GERBER and LEVINE, JJ., concur.

      . The father filed a petition for writ of habeas corpus with this court. We redesignated the father's petition as an appeal of a non-final order which determines child custody in a family law matter. See Fla. R.App. P. 9.130(a)(3)(C)(iii); Glockson v. Manna, 711 So.2d 1332, 1332 (Fla. 2d DCA 1998).


author: COHEN, J.

text:
    FORT PLANTATION INVESTMENTS, LLC, et al., Appellants, v. IRONSTONE BANK, FSB, Appellee.
    No. 5D11-535.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.

      Matthew G. Mercer of Mercer Law, P.A., St. Augustine, for Appellants.
    James R. McCachren, III, and James H. Cummings of Smith, Gambrell & Russell, LLP, Jacksonville, for Appellee.
   COHEN, J.

Fort Plantation Investments, LLC (“Fort Plantation”), David Fort, Claudia Fort, C.A.M.P.U.S. Development Group, Inc., and Fortgroup Development, LLC (collectively the “guarantors”), appeal from a final summary judgment entered in favor of Ironstone Bank, FSB (the “bank”), on its complaint to foreclose a mortgage and for damages against the guarantors of a promissory note. We affirm without prejudice for appellants to seek set-off.

Fort Plantation borrowed $1,035,000 in the form of a construction loan, and in return executed and delivered a promissory note in that amount to the bank. The note was secured by a mortgage on a two-parcel property located in St. Johns County and commercial guaranties executed by each of the guarantors, wherein they promised to fulfill Fort Plantation’s obligations under the note and mortgage.

After Fort Plantation defaulted, the bank filed a complaint against Fort Plantation and the guarantors. In counts I and II, the bank sought to recover against Fort Plantation on the note, and to foreclose the mortgage on the property. In counts III, IV, V and VI, the bank sought money judgments against the guarantors for the full amount due under the note. An answer was filed with no affirmative defenses.

After a summary judgment hearing, the trial court entered final judgment in the bank’s favor. In the judgment, the court directed the guarantors to pay the bank $1,165,240.33, plus statutory interest, and the court ordered the clerk to sell the property at a public sale to recover any unpaid amount due to the bank. The court expressly retained jurisdiction to enter further orders that were proper, including any deficiency judgment. On a motion for rehearing, the court entered an order abating the bank’s collection efforts against the guarantors until completion of the foreclosure sale.

On appeal, Fort Plantation and the guarantors argue the trial court’s final judgment was procedurally improper and constitutes reversible error. Specifically, they claim the bank was not entitled to monetary damages under the guaranties until after completion of the foreclosure sale and finding of a deficiency judgment.

In Florida, the drawer or maker of a negotiable instrument and any party who guaranteed payment thereof may be sued in the same action. § 46.041(1), Fla. Stat. (2010). “A suit on a guaranty and a foreclosure action are not inconsistent remedies, and therefore pursuit of either of those remedies without satisfaction is not a bar to the pursuit of the other.” Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408, 409 (Fla. 2d DCA 1983).

A guaranty is a promise to pay the debt of another on the default of the person primarily liable for payment or performance. New Holland, Inc. v. Trunk, 579 So.2d 215, 216-17 (Fla. 5th DCA 1991). A distinction exists between an absolute guaranty and a conditional guaranty. Mullins v. Sunshine State Serv. Corp., 540 So.2d 222, 223 (Fla. 5th DCA 1989). As to an absolute guaranty, the guarantor becomes liable immediately upon default in payment by another, whereas under a conditional guaranty, the guarantor does not become liable until the occurrence of certain conditions. Id. (citing Anderson v. Trade Winds Enters., Corp., 241 So.2d 174, 177 (Fla. 4th DCA 1970)). In Anderson, the court explained:

If a written contract in unambiguous terms expresses an unconditional guarantee, then the guaranty is absolute....
Where the guaranty is absolute, the guarantor becomes hable upon non-payment by the principal, and the person in whose favor the guaranty runs has no duty to first pursue the principal before resorting to the guarantors.

241 So.2d at 177.

The guaranties signed and executed by the guarantors in this case are unambiguously absolute and unconditional. After Fort Plantation defaulted, the bank was entitled to pursue a guaranty action against the guarantors, irrespective of filing a foreclosure action against the mortgagor. The bank’s pursuit of both actions in the same suit was permissible, and the trial court did not err in awarding it a money judgment against the guarantors in the final judgment.

However, where there is a money judgment entered against a guarantor pri- or to a foreclosure sale, the guarantor should be allowed to demonstrate that the foreclosure sale reimbursed the mortgagee to the extent that the sale would render enforcement of the guaranty inequitable, either in whole or in part. Mullins, 540 So.2d at 224. Here, the trial court did not indicate in the final judgment or the abatement order that appellants were entitled to seek set-off or a credit of the foreclosure sale proceeds. The trial court’s order is affirmed without prejudice for appellants to seek set-off. There is no merit to the remaining issue raised.

AFFIRMED, without prejudice for appellants to seek set-off.

MONACO and TORPY, JJ., concur.

      . The guaranties provide:
      For good and valuable consideration, Guarantor absolutely and unconditionally guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all Borrower’s obligations under the Note and Related Documents. This is a guaranty of payment and performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender’s remedies against anyone else obligated to pay the indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor will make any payments to Lender or its order, on demand ... without set-off or deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty, Guarantor’s liability is unlimited and Guarantor’s obligations are continuing.
      Fortgroup’s guaranty contains different language, but reads the same.


author: MORRIS, Judge.

text:
    SOARES DA COSTA CONSTRUCTION SERVICES, LLC, Appellant, v. ALTA MAR DEVELOPMENT, LLC; Balsam Acquisitions, LLC; Tarragon Development Corporation; and Safeco Insurance Company of America, Appellees.
    No. 2D11-2164.
    District Court of Appeal of Florida, Second District.
    April 13, 2012.
    F. Alan Cummings and Christopher R. Conley of Smith Currie & Hancock, LLP, Tallahassee, and Y. Lisa Colon Heron of Smith Currie & Hancock, LLP, Fort Lauderdale, for Appellant.
    Kevin P. Kelly and Mario Romero of Gray Robinson, P.A., Orlando, for Appel-lees.
   MORRIS, Judge.

Soares Da Costa Construction Services, LLC (SDC), appeals a final judgment and amended final judgment confirming an arbitration award and determining that Tarragon Development Corporation was entitled to attorneys’ fees pursuant to section 713.29, Florida Statutes (2006), as the prevailing party on a claim of lien which was factually intertwined with the arbitration proceedings between the parties. SDC argues in part that because it voluntarily dismissed its claim of lien action, the trial court was divested of jurisdiction to confirm the arbitration award and, therefore, that Tarragon could not be deemed a prevailing party for purposes of attorneys’ fees. For the reasons set forth below, we reject that argument and affirm the final judgment and amended final judgment. We reject SDC’s other arguments without comment.

I. Background

In August 2003, SDC entered into a contract with Tarragon to construct Alta Mar Condominium, a multifamily residential, high-rise condominium in Fort Myers, Florida. Following numerous contractual disputes between the parties, SDC recorded a claim of lien against the property in June 2006. Pursuant to the contract, SDC then served a demand for arbitration against Tarragon. In response, Tarragon filed a counterdemand in the arbitration against SDC for breach of contract and against its surety, Insurance Company of the State of Pennsylvania (ICSP), for breach of the performance bond issued to secure SDC’s performance. Thereafter, in June 2007, SDC filed a circuit court action to foreclose on SDC’s claim of lien.

The principal allegation of SDC’s claim of lien was that Tarragon breached the contract by not paying SDC in full. Because the contract contained an arbitration provision, SDC and Tarragon stipulated in July 2007 to stay the lien foreclosure action so that they could arbitrate the issues raised in the complaint. Specifically, the parties stipulated that “SDC ... and Tarragon Development Corporation are currently engaged in an arbitration before the American Arbitration Association ... involving the issues set forth in the Complaint.”

Ultimately, Tarragon prevailed in the arbitration proceedings and was awarded $1.925 million against SDC. The arbitration award specifically pronounced Tarragon to be the prevailing party on claims between SDC and Tarragon. SDC moved in the lien foreclosure action to vacate the arbitration award, and thereafter, Tarragon served its response in opposition to the motion to vacate as well as a motion to confirm the arbitration award. In its motion to confirm the arbitration award, Tarragon sought prevailing party attorneys’ fees pursuant to section 713.29 as well as the discharge of SDC’s lien. Two months later, SDC served its notice of voluntary dismissal of the claim of lien action. Despite SDC’s voluntary dismissal, the trial court entered its final judgment in favor of Tarragon, therein confirming the arbitration award, discharging SDC’s lien, and finding that Tarragon was entitled to attorneys’ fees. An amended final judgment followed which did not alter the trial court’s finding that Tarragon was entitled to attorneys’ fees.

II. Analysis

We have confined our discussion to SDC’s second argument on appeal which it frames as one of whether the trial court lacked jurisdiction to confirm the arbitration award due to SDC’s notice of voluntary dismissal. As a result, SDC asserts that we must conduct a de novo review. However, we believe the issue is more properly framed as whether SDC could voluntarily dismiss its claim of lien action in order to divest the trial court of jurisdiction to confirm the arbitration award. In addressing that issue, we are mindful that “[u]nder Florida law, arbitration is a favored means of dispute resolution and courts indulge every reasonable presumption to uphold proceedings resulting in an award.” Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 473 (Fla.1995) (citing Roe v. Amica Mut. Ins. Co., 533 So.2d 279, 281 (Fla.1988)).

SDC’s argument that it had a right to voluntarily dismiss its claim of lien action and therefore divest the trial court of jurisdiction to confirm the arbitration award is flawed in two respects. First, while we acknowledge that a plaintiff has the right to voluntarily dismiss its civil court action pursuant to Florida Rule of Civil Procedure 1.420(a), that right is not without limitations. For example, a counterclaim filed prior to a voluntary dismissal is unaffected by such a dismissal where it can remain pending for an independent adjudication, and a trial court is not divested of jurisdiction to hear and resolve the counterclaim. See rule 1.420(a)(2). Here, Tarragon prevailed on its counterclaim in the arbitration proceedings and its motion to confirm the award with the trial court must be treated in exactly the same manner. That is, Tarragon’s motion to confirm the award on its arbitration counterclaim acted as a counterclaim in the claim of lien action once the motion to confirm was filed and served. To ignore the fact that Tarragon’s motion to confirm the award on its counterclaim was pending would be the antithesis of “indulg[ing] every reasonable presumption to uphold [the arbitration] proceedings.” Miele, 656 So.2d at 473; see also Murphey v. Dean Witter & Co., 392 So.2d 286, 286 (Fla. 4th DCA 1980) (Anstead, J., specially concurring) (recognizing that appellant originally sought enforcement of arbitration award but later voluntarily dismissed her action after appellee filed its counterclaim, but explaining that courts generally favor upholding arbitration proceedings which have resulted in an award (citing Knight v. H.S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1973))).

Second, the parties stipulated to a stay of the claim of lien action while the arbitration proceedings were pending with the explicit recognition that the issues raised in the arbitration proceedings were the same issues underlying SDC’s complaint. This is important because there is a common law exception to the rule that a voluntary dismissal deprives a court of jurisdiction where a defendant demonstrates serious prejudice if the dismissal is upheld. See Ormond Beach Assocs. Ltd. v. Citation Mortg., Ltd., 835 So.2d 292, 295 (Fla. 5th DCA 2002). Serious prejudice includes situations where the defendant “is entitled to receive affirmative relief or a hearing and disposition of the case on the merits, has acquired substantial rights in the cause, or where dismissal is inequitable.” Id.

This court, in Patterson v. Allstate Insurance Co., 884 So.2d 178, 179 (Fla. 2d DCA 2004), dealt with a similar situation as that presented in the instant case: an arbitration award was entered in favor of the defendant and the trial court entered a judgment thereon after the plaintiff filed a notice of voluntary dismissal. The plaintiff also raised the same argument that SDC raises here: that the trial court lacked jurisdiction to enter the judgment due to the voluntary dismissal. See id. There, the issue was whether the plaintiffs failure to timely seek a trial de novo affected the defendant such that the plaintiffs voluntary dismissal was subject to the common law exception. Id. at 180. We specifically found that that factual scenario fell “within the exception recognized in Ormond Beach where the parties have acquired ‘substantial rights in the cause’ and are entitled to a ‘disposition of the case on the merits.’ ” Id. at 181 (quoting Ormond Beach, 835 So.2d at 295).

Although in this case SDC moved to vacate the arbitration award within the time period allowed and, therefore, timeliness is not the basis for our determination that Tarragon acquired substantial rights in the cause, we nonetheless believe the same principle applies. SDC has not challenged the trial court’s denial of its motion to vacate the arbitration award. Thus, once Tarragon prevailed on its counterclaim in the arbitration proceedings, it acquired substantial rights in the cause and a voluntary dismissal of the action would be inequitable. Indeed, by virtue of the stipulation between the parties that the issues underlying the complaint in the claim of lien action were also the issues involved in the arbitration, the parties each attached some level of importance to the determination of the issues by the arbitration panel. Our affirmance then not only is in conformance with the directive to “indulge every reasonable presumption to uphold [the arbitration] proceedings,” Miele, 656 So.2d at 473, but it also serves as recognition of the importance placed on the issues by the parties themselves, i.e., that the prevailing party in the arbitration proceedings acquired substantial rights in the cause.

Accordingly, we hold that the trial court properly confirmed the arbitration award and we affirm.

Affirmed.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . Although not pertinent to this appeal, we note that Tarragon did not prevail against ICSP.

      . We find it interesting, however, that SDC did not file its notice of voluntary dismissal until two months after Tarragon served its motion to confirm the arbitration award. There is at least an argument that the notice could be deemed a fraud on the court, which would also be grounds to preclude a voluntary dismissal, though we make no such finding in this case. See Serv. Experts, LLC v. Northside Air Conditioning & Elec. Serv., Inc., 56 So.3d 26, 32 (Fla. 2d DCA 2010) (noting other decisions interpreting fraud exception to be applicable where notice of voluntary dismissal is considered attempt to commit fraud on the court).

      . Our affirmance of the trial court’s confirmation of the arbitration award should only be viewed as definitive on the issue of Tarragon’s entitlement to attorneys’ fees. Our disposition should in no way be deemed determinative of whether any of the fees in the arbitration proceeding should be regarded as fees in the claim of lien action.


text:
    Jessie J. HURRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1284.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Jessie J. Hurry, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., ROWE and MAKAR, JJ., concur.


text:
    Xavier CHARLOT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5357.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Xavier Chariot appeals his conviction for carrying a concealed weapon. He makes two claims on appeal. First, he argues that the trial court erred in denying his motion for judgment of acquittal on the ground that the weapon was not concealed. We affirm on this issue as the state presented a jury question as to whether the gun was concealed. See Dorelus v. State, 747 So.2d 368 (Fla.1999). We write to address the second issue, in which Chariot claims that the court erred in failing to conduct a Faretta hearing when Chariot decided, against the advice of his counsel, to go to trial. We affirm, as Faretta does not apply where the defendant does not seek to represent himself, and the court made the appropriate inquiry to assure that his objection to a continuance was knowing and intelligent.

On the morning of trial the defense counsel told the court that he had become aware of a possible motion to suppress. The day before he also became aware of a potential defense witness, but he would need to seek a continuance to pursue it. Otherwise, he was ready for trial. The defendant did not want to delay the trial for either reason. The judge engaged in a colloquy with the defendant. He confirmed with Chariot that the defense counsel thought that there was a dispositive motion to suppress that might be filed, explaining what the motion meant but also telling Chariot that it might or might not be granted. It would require a continuance of the trial. Chariot indicated that he understood but wanted to go to trial. He did not want to delay the trial in order to pursue the suppression issue. Chariot further indicated satisfaction with his lawyer. The trial then commenced, and Chariot was found guilty of carrying a concealed weapon and sentenced to thirty months of probation.

On appeal, he contends that by making the decision to go to trial and not allowing his attorney to file a motion to suppress he was effectively acting as his own attorney, requiring a Faretta inquiry. See Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He argues that before he should have been allowed to make that decision to forego a motion to suppress the judge was required to question him as to whether he was making a voluntary and intelligent waiver of counsel.

We do not construe the defendant’s opposition to a continuance of his trial as a request to represent himself and act as his own attorney. While one court has stated that a motion for continuance is a decision to be made by the defense attorney, even over the objection of the client, see Laidler v. State, 10 So.3d 1136, 1138 (Fla. 1st DCA 2009), we can only assume that defense counsel in this case did not feel strongly that the need for a continuance was fundamental to his representation, because he did not seek to withdraw from representation. See Comment to Rule ⅛-1.2, Rules Regulating the Florida Bar (“On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. The lawyer should consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from representation_ Conversely, the client may resolve the disagreement by discharging the lawyer.”).

Under very similar circumstances, our supreme court held that the court’s denial of defense counsel’s motion for continuance where his client objected to the continuance was not an abuse of discretion. In Curtis v. State, 685 So.2d 1234 (Fla.1996), defense counsel told the court that he had discussed a continuance of Curtis’s trial for murder with him, telling him that he would be “ill-prepared” to conduct the trial. After a lengthy inquiry with Curtis, the court denied the continuance. Defense counsel again requested a continuance at another pretrial conference which Curtis again opposed, and the court denied the continuance.

On appeal, Curtis argued that the court erred in denying the continuance. The supreme court disagreed, finding that Curtis had agreed to the denial:

The granting or denying of a continuance is within the sound discretion of the trial court and this Court will not set aside such a ruling absent an abuse of discretion, even in a capital case ... In the present case, the trial court discussed the matter extensively with Curtis on numerous occasions and disclosed in detail the consequences of a prompt trial. Curtis was adamant. Curtis’s decision was informed and knowing and was properly within his purview ... We find no error.

Id. at 1236 (citations omitted). While Curtis did not argue that the court should have provided him with Faretta warnings, we do not think the supreme court would have approved of the procedure used, or referred to it as “informed and knowing,” if the court thought that he was exercising his right to self-representation.

In Boyd v. State, 45 So.3d 557 (Fla. 4th DCA 2010), we refused to require a Faret-ta hearing when the defendant insisted on exercising his speedy trial right over the objection of his counsel. Insisting on the right to a speedy trial is tantamount to objecting to a continuance of that trial. Thus, we deem Boyd as controlling. We said:

Appellant never requested self-representation. Nor is the decision to waive or assert speedy trial rights a core function which would trigger a Faretta inquiry. The decision as to whether to waive speedy trial does not require the level of skill and experience that the “core functions” of a lawyer demand. In fact, our supreme court has made clear that the client should be “involved” with such a decision.... Honoring a client’s wishes in this regard is not the same as an attorney allowing the defendant to perform a core function of the attorney’s role in the defense[.]

Id. at 559 (citations omitted). The same may be said of a motion for continuance, even without speedy trial implications.

We recognize that both defense counsel and the court walk a fine line in this area. It is not an infrequent occurrence that defense counsel and a defendant can be at odds over a decision to continue the trial for further discovery or other grounds. A defendant may want to get the trial over with; defense counsel may need time to develop other evidence. A court might deny a continuance based upon the defendant’s wishes; however, that should not require the court to do more than assure that the defendant’s position is knowing and intelligent. See Cur-tís, 685 So.2d at 1236. The court made that inquiry in this case. Since the defendant was not requesting the right to represent himself at the trial, a Faretta hearing was not required.

Affirmed.

STEVENSON and CONNER, JJ., concur.

      . Faretta held that criminal defendants have a constitutional right to refuse counsel and to represent themselves. Once a defendant makes an unequivocal request for self-representation, pursuant to Faretta and the Florida Supreme Court’s precedent, "the trial court is obligated to hold a hearing 'to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.’ ” McCray v. State, 71 So.3d 848, 864 (Fla.2011). He must be made aware of the dangers and disadvantages of self-representation. Id.


author: GROSS, J.

text:
    Christina YACOUB, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2400.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Rehearing Denied May 16, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Christina Yacoub appeals her conviction and sentence for felony driving under the influence. We reverse because the state failed to satisfy its burden of proving that Yacoub was either provided counsel or validly waived the right with respect to a previous misdemeanor conviction.

On July 4, 2008, the state charged Ya-coub with felony driving under the influence. The felony charge was based on her guilty plea to two misdemeanor DUI offenses within the past ten years. See § 316.193(2)(b), Fla. Stat. (2008). Yacoub moved to dismiss the charge for lack of jurisdiction, arguing that there was no valid felony charge to prosecute in circuit court since one of her 2002 DUI convictions had been uncounseled. Following a hearing, the trial court denied the motion.

A defendant charged with felony DUI may move to dismiss the charge by alleging that the state is improperly relying on a prior uncounseled misdemeanor DUI conviction. See State v. Kelly, 999 So.2d 1029, 1052 (Fla.2008). To validly raise such a jurisdictional challenge, the defendant must satisfy an initial burden of production by asserting under oath “(1) that the [prior] offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) [that] counsel was not appointed; and (4) [that] the right to counsel was not waived.” Id. at 1037 (citing State v. Beach, 592 So.2d 237, 239 (Fla.1992)). If the defendant carries this minimalistic burden, then the “burden of persuasion shifts to the state to show either that counsel was provided or that the right to counsel was validly waived.” See id. at 1053.

At the hearing on the motion in this case, the parties stipulated that Ya-coub pleaded guilty to two prior DUIs on the same date in 2002 before the same judge, while Yacoub was in custody. They further agreed that one DUI was handled by the public defender’s office and that the second was punishable by imprisonment. The state had the burden of establishing that counsel was provided for the second DUI or that Yacoub validly waived her right to counsel. The state offered no transcript of the 2002 plea conference and no other evidence of what occurred. The state produced no written waiver of the right to counsel. See Fla. R.Crim. P. 3.160(e). The lawyer who was present for Yacoub on one DUI at the 2002 hearing did not appear to testify. The state argued that the temporal proximity of the two pleas circumstantially established that both pleas were entered on the advice of counsel. The trial judge accepted this view. However, the state’s “showing” failed to meet the requirements of Beach and Kelly, which require “evidence in the record” “‘to show [1] either that counsel was provided or [2] that the right to counsel was validly waived.’ ” Beach, 592 So.2d at 239; Kelly, 999 So.2d at 1037 (quoting Beach) (emphasis in original). The sparse record failed to carry the state’s burden of persuasion under Kelly and Beach. We therefore reverse the felony conviction and remand to the circuit court to resentence Yacoub to misdemeanor driving under the influence.

Reversed and remanded.

MAY, C.J., and DAMOORGIAN, J., concur.


author: LAGOA, J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee, for the Benefit of the Holder of Aames Mortgage Investment Trust 2005-4 Mortgage Backed Notes, Appellant, v. Aisa CAGIGAS, et al., Appellees.
    No. 3D11-1744.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.
    Lapin & Leiehtling and Adam B. Leich-tling and Anne Janet De Ases, for appellant.
    Daniel M. Keil, Miami, for appellees Aisa Cagigas and Amauri Izquierdo.
    Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   CONFESSION OF ERROR

LAGOA, J.

Appellant Deutsche Bank National Trust Company appeals an order dismissing its complaint with prejudice as a sanction for misconduct. We agree with appel-lees’ confession of error that the trial court’s order must be reversed.

It is well settled that a court must first consider each of the following six factors delineated in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), before dismissing a case as a sanction:

1. whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Buroz-Henriquez v. De Buroz, 19 So.3d 1140, 1141 (Fla. 3d DCA 2009); accord Ham v. Dunmire, 891 So.2d 492, 496 (Fla. 2004); see Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366, 367 (Fla. 3d DCA 2011); Alvarado v. Snow White & the Seven Dwarfs, Inc., 8 So.3d 388 (Fla. 3d DCA 2009); Alsina v. Gonzalez, 83 So.3d 962 (Fla. 4th DCA 2012); Hawthorne v. Wesley, 82 So.3d 1183 (Fla. 2d DCA 2012). In so doing, the trial court must make express findings of fact concerning each of the Kozel factors. “Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.” Ham, 891 So.2d at 496; see also Buroz-Henriquez, 19 So.3d at 1142; Alvarado, 8 So.3d at 388; Hawthorne, 82 So.3d at 1184.

. Here, the trial court dismissed Deutsche Bank’s complaint as a sanction. However, the order does not reflect that the trial court considered the Kozel factors or that the trial court made the required written findings of fact addressing each factor. Accordingly, we reverse the order of dismissal and remand for consideration of those factors. If, on remand, the trial court determines, after considering the Kozel factors, that dismissal is appropriate the trial court shall include in its written order findings of fact with respect to each factor. See Arkiteknic, Inc., 53 So.3d at 367; Buroz-Henriquez, 19 So.3d at 1142; Alvarado, 8 So.3d at 389.

Reversed and remanded for further proceedings consistent with this opinion.


author: HAZOURI, J.

text:
    Bruce BURTOFF, Appellant, v. Alfred TAUBER, Successor Trustee to Laszlo N. Tauber, deceased, Appellee.
    No. 4D11-3810.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Bruce D. Burtoff, Fort Lauderdale, pro se.
    John H. Pelzer of Ruden McClosky PA, Fort Lauderdale, for appellee.
   HAZOURI, J.

The Appellant, Bruce Burtoff, challenges the order denying his motion for evidentiary hearing and to dissolve an injunction entered after the appellee, the trustee, obtained an order freezing a bank account. Because the order granting the injunctive relief did not contain factual findings, and it’s not clear an evidentiary hearing was held, we reverse.

After the trial court entered an ex parte injunction, it dissolved it upon Burtoffs motion. The parties sought clarification because the order dissolving the injunction also required the trustee to post an injunction bond.

Subsequently, the trial court confirmed the injunction was dissolved and ordered the parties to appear for a hearing on September 6, 2011. After that hearing, the court entered an order again freezing the assets in the bank account. Burtoff filed a motion for evidentiary hearing and to dissolve the ex parte injunction. He claimed that the September 6 hearing was not evidentiary, and he requested an opportunity to contest the trustee’s allegations. The court entered an order denying the motion for evidentiary hearing.

The standard of review of a court’s ruling on a motion to dissolve an injunction is abuse of discretion if the order is based on factual matters, and de novo if based on legal matters. Browning-Ferris Indus. of Fla., Inc. v. Manzella, 694 So.2d 110, 111-12 (Fla. 4th DCA 1997). In order to obtain a temporary injunction, one must demonstrate that “(1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest.” Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc., 51 So.3d 1191, 1195 (Fla. 4th DCA 2011) (citation omitted). Once a party has obtained an ex parte temporary injunction, the opposing party may appeal the injunction or file a motion to dissolve the injunction. Matin v. Hill, 801 So.2d 1003, 1005 (Fla. 4th DCA 2001) (citation omitted). If the party opts to move to dissolve the injunction, the court must hold an evidentiary hearing where the plaintiff must “go forward with evidence sufficient to sustain the ex parte grant of temporary injunctive relief.” Id at 1006 (quoting Shea v. Cent. Diagnostic Servs., Inc., 552 So.2d 344, 346 (Fla. 5th DCA 1989)). Further, the opposing party must have an opportunity to demonstrate that the allegations relied on by the court are not true. Id at 1005 (citation omitted).

We reverse for two reasons: First, it appears the September 6 injunction was issued without an evidentiary hearing, and that Burtoff was not given an opportunity to dispute the trustee’s allegations at the hearing on his motion to dissolve. Second, even if an evidentiary hearing was held, reversal is required because the September 6 order does not contain the findings required by Florida Rule of Civil Procedure 1.610(c). On remand, if an evidentia-ry hearing was not already held, the trustee has the burden to present evidence sufficient to grant injunctive relief. The court must give Burtoff an opportunity to dispute the allegations. If the court determines that an injunction is appropriate, it must make the required findings. If an evidentiary hearing was already held, at which these requirements were met, the court must enter an order with the necessary findings.

Reversed, and remanded for proceedings consistent with this opinion.

POLEN and LEVINE, JJ., concur.

      . This rule provides in part, "Every injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document....”


text:
    Jeffrey RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-562.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Jeffrey Rodriguez, Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Mills v. State, 23 So.3d 186, 187-88 (Fla. 1st DCA 2009); Hamilton v. State, 996 So.2d 964 (Fla. 1st DCA 2008).

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    Nelson DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-517.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.

      Nelson Diaz, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTINAS, LAGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011) (citing State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011) [review granted, 71 So.3d 117 (Fla. 2011) ], and acknowledging “uncertainty caused by Shelton [v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011) ]” but reaffirming its view that section 893.13 is constitutional).


text:
    Lauren G. GRESS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3884.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the judgments and sentences she received for the offenses of culpable negligence and two counts of neglect of a child causing great bodily harm, permanent disfigurement, or permanent disability. The State properly concedes that the conviction for culpable negligence is a double jeopardy violation because it arose from the same criminal episode, involving the same victim, and was a lesser offense subsumed by a greater offense. Accordingly, we reverse the judgment and sentence for culpable negligence. In all other respects, we affirm.

REVERSED IN PART; AFFIRMED IN PART.

GRIFFIN, SAWAYA and TORPY, JJ., concur.


author: EVANDER, J.

text:
    Kellie Ann WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4050.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Kellie Williams appeals a judgment and sentence for possession of clonazepam. Williams contends that the trial court erred in failing to instruct the jury on her “prescription defense.” We agree.

A defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence introduced at trial which supports that defense. Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998). Here, Williams presented evidence that she was in temporary possession of the clonazepam at the request of the prescription holder. (The prescription holder took the clonazep-am for her bipolar condition and allegedly had memory problems that would sometimes prevent her from taking her medications at the appropriate time.) Because the trial court was of the apparent belief that the prescription defense was only available to the prescription holder, the jury was not instructed on such defense.

Subsequent to the trial below, both this court and the First District Court of Appeal issued opinions concluding that the prescription defense extended to an individual authorized by the prescription holder to temporarily possess the medications on the holder’s behalf. See State v. Lato-no, 75 So.3d 394, 395 (Fla. 5th DCA 2011) (“Section 893.13(6)(a), Florida Statutes (2009) permits an individual to legally possess a controlled substance where the controlled substance was obtained pursuant to a valid prescription. The prescription defense is available to the prescription holder and any individual authorized by the prescription holder to hold the medications on his or her behalf.”) (citation omitted); McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010) (prescription defense available to wife who asserted that she was holding her husband’s pills on his behalf).

REVERSED and REMANDED for new trial.

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

      . The trial court withheld adjudication of guilt and sentenced Williams to time served.

      . § 893.13(6)(a), Fla. Stat. (2009).


author: JACOBUS, J.

text:
    Dean William GRANNEMANN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4299.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

Dean William Grannemann’s probation was revoked based on his failure to complete a drug treatment program and his failure to report to his probation officer as instructed. However, the only evidence supporting his failure to complete drug treatment was hearsay testimony indieat-ing that his probation officer had been told by the treating facility that he had been unsuccessfully discharged from its program. Such evidence is insufficient in itself to support a finding of a violation of probation. See Davis v. State, 831 So.2d 792, 793 (Fla. 5th DCA 2002). Further, the State failed to offer any evidence that Grannemann was “in some manner responsible” for his discharge from drug treatment. See Rubio v. State, 824 So.2d 1020, 1022 (Fla. 5th DCA 2002) (“When a defendant’s probation is sought to be revoked because of his failure to successfully complete a designated rehabilitation program, some evidence must be submitted to show that the defendant was in some manner responsible for such failure.” (quoting Curry v. State, 379 So.2d 140, 141 (Fla. 4th DCA 1980))). Because it is unclear from the record whether the trial judge would have revoked probation and imposed the same sentence based on Grannemann’s failure to report to his probation officer, it is necessary to reverse and remand to allow the court to consider whether that violation alone warrants revocation. See Orr v. State, 453 So.2d 222, 223 (Fla. 5th DCA 1984).

REVERSED and REMANDED.

SAWAYA and PALMER, JJ., concur.


text:
    Sheldon GAYLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1714.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

See Rodriguez v. State, 919 So.2d 1252, 1278 (Fla.2005) (holding that litigants “have no right to have any particular judge hear their case”).

AFFIRMED.

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


text:
    Bernard Daniel DUFFY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-694.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Bernard Daniel Duffy, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order issued December 1, 2011, denying petitioner’s motion for additional jail time credit in Case No. 2008-CF-3029, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PALMER, TORPY and EVANDER, JJ., concur.


text:
    Calvin SLEDGE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-792.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Calvin Sledge, Sneads, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as to the trial court’s April 5, 2011, sanction order. However, the petition for belated appeal is granted as to the January 21, 2012, order denying post-conviction relief in case no. 2000-CF-2908-0, in the Circuit Court in and for Orange County, Florida. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and LAWSON JJ., concur.


text:
    Henry Oliver McKINNON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3296.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

Henry Oliver McKinnon appeals the judgment and sentence revoking and terminating his probation. He contends the lower court erred in finding a violation because there was insufficient evidence showing he violated condition two of his probation.

While serving three years’ probation, McKinnon was alleged to have violated condition two of his probation by changing his residence without first obtaining his probation officer’s consent and condition eleven of his probation by failing to report immediately to probation after his release from prison. An amended affidavit of violation was filed alleging that McKinnon violated conditions three, four, and six of his probation by committing new law violations in Duval County.

The evidence at the hearing supported the court’s finding that McKinnon violated conditions three, four, six, and eleven of his probation. However, there was insufficient evidence to support a finding that he violated condition two. Because there was sufficient evidence supporting the judgment and sentence revoking McKinnon’s probation, we affirm. See Davis v. State, 945 So.2d 607 (Fla. 4th DCA 2006) (affirming order revoking probation where hearing evidence supported finding of new law violations, even though there was insufficient evidence he failed to report).

At the hearing, the court orally announced McKinnon violated conditions two, three, four, six and eleven of his probation. The written order, however, only shows a finding that he violated conditions two and eleven. We therefore remand for correction of the order of revocation so that it conforms to the court’s oral pronouncement. See Nelson v. State, 601 So.2d 1347 (Fla. 4th DCA 1992) (remanding for correction of revocation order where written order did not conform to oral pronouncement). We also direct the court to delete its finding that McKinnon violated condition two.

AFFIRMED and REMANDED with Instructions.

PALMER and LAWSON, JJ., concur.

      . McKinnon also alleges the trial judge abandoned her role as an impartial trier of fact and law. We find this claim without merit and affirm without further comment.


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    Willie D. UPSON, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-5502.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Willie D. Upson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and C. Ian Garland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Willie D. Upson petitions for certiorari review of an order of the circuit court dismissing his petition for writ of mandamus. We agree with petitioner that the circuit court departed from the essential requirements of law when it dismissed his petition without affording him the opportunity to reply to the Department of Corrections’ response, which raised for the first time the issue on which the circuit court based its dismissal order. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). Accordingly, the petition for writ of certiorari is GRANTED, the order dismissing Upson’s petition is QUASHED, and the matter is REMANDED for reconsideration in light of petitioner’s reply.

WOLF, RAY, and MAKAR, JJ., concur.


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    Gregory Gerard CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5364.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the judgment and sentence but remand for the trial court to correct the judgment to reflect a conviction for attempted robbery. See Washington v. State, 37 So.3d 376 (Fla. 1st DCA 2010) (affirming Anders appeal but remanding for correction of scrivener’s error).

AFFIRMED and REMANDED.

WOLF, RAY, and MAKAR, JJ., concur.

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


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    Corey TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6661.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Corey Townsend, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

A jury convicted the appellant of attempted second-degree murder and the court imposed a life sentence with 25 years’ minimum mandatory pursuant to the 10-20-Life statute, section 775.087(2)(a)S., Florida Statutes. In this postconviction motion the appellant argues that before his sentence can be enhanced, the jury must make a finding that he discharged a firearm causing great bodily harm. He argues that his sentence enhancement appears to be illegal because the jury did not make this express finding. See § 775.087(2)(a)3., Florida Statutes; Mendenhall v. State, 48 So.3d 740 (Fla. 2010) (“The 10-20-Life statute provides for mandatory minimum sentences for certain enumerated offenses, including attempted murder, where a defendant ... discharges a firearm and as the result of the discharge, inflicted death or great bodily harm[.] ... Mendenhall ... assertfed] that ‘the jury did not make a finding that ‘death or great bodily harm was inflicted on any person.’ ”). The trial court dismissed the claim as facially insufficient and did not attach any portion of the record refuting the appellant’s claim. We conclude the appellant’s claim is facially sufficient and consequently we reverse and remand for the trial court to either attach portions of the record which refute the appellant’s claim that the jury did not make a finding that he discharged a firearm causing great bodily harm, or to provide relief to the appellant by resentencing him without the sentence enhancement.

REVERSED AND REMANDED.

PADOVANO, ROWE, and MARSTILLER, JJ., concur.


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    John FIGUEROA, Appellant, v. INTEGRITY EMPLOYEE LEASING/GUARANTEE INSURANCE COMPANY, Appellees.
    No. 1D11-6281.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Brian O. Sutter, Port Charlotte, for Appellant.
    Christopher A. Thorne and D. Robert Swanson of Thorne & Storey, Orlando, for Appellees.
   PER CURIAM.

Upon review of Appellant’s timely response to this Court’s February 7, 2012, order to show cause, the Court dismisses this appeal for lack of jurisdiction because the order under review is neither a final order nor an appealable nonfinal order under Florida Rule of Appellate Procedure 9.180(b)(1).

DISMISSED.

DAVIS, CLARK, and ROWE, JJ., concur.