author: PER CURIAM.

text:
    John W. DUFFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4712.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2010.
    John W. Duffield, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

' WOLF, ROBERTS, and WETHERELL, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    VISION ASSOCIATES, INC., d/b/a, Bay Gardens Retirement Village, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D10-2125.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2010.
    Peter J. Molinelli, Thomas W. Caufman, and Sheila K. Nicholson of Quintarnos, Prieto, Wood & Boyer, P.A., Tampa, for Appellant.
    Craig Smith, General Counsel, Agency for Health Care Administration, Tracy Lee Cooper and Dwight 0. Slater, Assistant General Counsel, Tallahassee, for Appel-lee.
   PER CURIAM.

This court elects to treat the joint motion for relinquishment of jurisdiction as a concession of error by appellee. See Stacey v. Dep’t of Prof'l Regulation, Bd. of Nursing Home Adm’r, 547 So.2d 241 (Fla. 1st DCA 1989). Accordingly, we reverse and remand this cause to the agency for further proceedings.

REVERSED and REMANDED.

BENTON, THOMAS, and ROWE, JJ., concur.


text:
    David J. HEEKIN, an individual, Petitioner, v. Patty HIGHSMITH, an individual, Julie Wrenn, an individual, Eleanor Ann Perry, an individual, ECAA, LLC, a foreign limited liability company, Kathy L. Anderson, an individual, and First American Title Company, Inc., a Florida corporation, Respondents.
    No. 1D10-5320.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.

      Scott A. Cole of Cole, Scott & Kissane, PA., Miami; Robert E. O’Quinn, Jr., of Cole, Scott & Kissane, P.A., Jacksonville, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits. See McGuire v. Florida Lottery, 17 So.3d 1276 (Fla. 1st DCA 2009) (order dismissing complaint with leave to amend is not final despite provision that it will become final at a future date if complaint is not amended; a separate final order must be entered).

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


text:
    Randy Lavern SPENCER, Petitioner, v. Patricia Ann SPENCER, Respondent.
    No. 1D10-4682.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.
    Randy Lavern Spencer, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of certiorari or belated appeal is denied. This disposition is without prejudice to petitioner’s right to appeal the final judgment.

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.


author: POLEN, J. PER CURIAM.

text:
    Vincent J. PUGLISI, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3056.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Opinion Denying Rehearing and Granting Motion for Clarification of Conflict March 30, 2011.

      Philip J. Massa, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Vincent Puglisi, appeals the trial court’s order adjudicating him guilty of first degree murder (Count I) and armed robbery (Count II) and sentencing him to life imprisonment without parole as to Count I and thirty years imprisonment as to Count II, to run concurrently. This court has jurisdiction. Fla. R.App. P. 9.140(b)(1)(A).

Puglisi and his co-defendant, Rex Ditto, were charged with first degree murder and armed robbery for events occurring on February 5, 2006. Following a jury trial, Puglisi was found guilty as charged. Having thoroughly reviewed the record, we hold that none of the errors complained of by Puglisi on appeal warrants reversal by this court.

At a hearing on Puglisi’s motion to suppress statements and physical evidence, Officer Christopher Crawford of the Boyn-ton Beach Police Department testified regarding his investigation of the death of Alan Shalleck. While at the crime scene (Shalleck’s mobile home) on February 7, 2006, Crawford found that Puglisi had recently called Shalleck’s phone. Crawford contacted Puglisi, told him he found Pugli-si’s number in Shalleck’s phone and that Crawford was investigating an incident that occurred with Shalleck. Crawford did not say Shalleck had been murdered. Pu-glisi suggested that Crawford meet him at his place of work, Chook’s Chicken, at 4:00 p.m. the following day.

The next day, Crawford and Investigator Brian Anderson went together to Chook’s Chicken, which was located in Broward County. Crawford and Anderson travelled in Anderson’s unmarked police car which looks like a normal civilian car. The officers were dressed in civilian dress clothing. Crawford introduced himself and Anderson to Puglisi and explained that they were investigating the death of Shal-leck and asked whether Puglisi would be willing to help them with the investigation. Puglisi replied that he would come and speak with the investigators so long as his boss was okay with him leaving work. After gaining the employer’s permission, Pu-glisi accompanied the officers back to the Boynton Beach Police Department.

Both Crawford and Puglisi’s employer testified that, at all times, Crawford’s tone was conversational. There was no physical contact between the officers and Pugli-si and Puglisi acted on his own free will in leaving with the officers and interacting with them. Puglisi was with the officers for the remainder of the day and that night was placed under arrest for the murder of Shalleck after Ditto implicated Puglisi and Puglisi himself confessed. Before an initial interview, Crawford read Puglisi his Miranda warnings from a Boynton Beach Police Department Miranda card, and Pu-glisi stated he understood his rights and signed the card. Before a subsequent interview later that evening, Crawford confirmed that Puglisi understood his rights and still wanted to give a statement to the police.

In his first tape recorded statement, Pu-glisi explained that he had met Shalleck about a year earlier through an ad in a gay magazine. Both Shalleck and Puglisi were gay and had a casual sexual relationship until about a month or two before Shal-leck’s death. Shalleck invited Puglisi to come over on Super Bowl Sunday, but Puglisi declined. Instead, Puglisi said he worked on Super Bowl Sunday until about 8:00 p.m. and then went to a restaurant with Rex Ditto, 29, whom Puglisi was dating. Puglisi said he and Ditto went to Puglisi’s home after the game ended and spent the night together. When the officers told Puglisi that Shalleck had been murdered in his home, Puglisi responded that Ditto could have done something like that. Puglisi had seen Ditto cleaning the front seat of a Ford Explorer with bleach on February 6 and also saw Ditto burning clothing, keys, documents, and the like on that night.

In a second tape-recorded statement, taken after Ditto confessed and implicated Puglisi in his confession, Puglisi confessed to taking part in the murder. Puglisi told Crawford that he had arranged to meet Shalleck around 11:30 pm. on Super Bowl Sunday. After having dinner with Ditto and watching the game, Puglisi and Ditto drove to Shalleck’s home in Puglisi’s vehicle. When they arrived, they went inside and watched TV. After a while, Shalleck told Ditto he wanted to have sex with him and asked him to go in his bedroom and undress. Ditto returned wearing nothing but his underwear. Ditto laid across Shal-leck’s lap and Shalleck pulled off his underwear and spanked him.

Shalleck told Ditto to go back into his bedroom and Shalleck followed. Shalleck called Puglisi into the room, and when Puglisi walked in he saw Shalleck performing oral sex on Ditto. Ditto “freaked out” and began strangling Shalleck. Ditto asked Puglisi to help him. Ditto pushed Shalleck to the floor and started beating him in the head with a paddle. Blood covered the paddle and was “going everywhere.” Ditto asked Puglisi to hold Shal-leck down, and Puglisi took a pillow and held it over Shalleck’s face. Ditto told Puglisi he was going to the kitchen to get a knife and soon returned with a knife and began stabbing Shalleck repeatedly. Pu-glisi estimated that Ditto stabbed Shalleck a hundred times. The first knife broke, and Ditto went to the kitchen to get another knife. Ditto returned to the bedroom and stabbed Shalleck until that knife broke too. When Ditto left to get a third knife, Puglisi left the room because he could no longer watch. Puglisi never stabbed Shal-leck himself because he did not “have the nerve” to do it.

After Puglisi left the room, Ditto eventually came out and told Puglisi that Shal-leck was dead. Ditto suggested dumping Shalleck’s body in Alligator Alley. The men put the body in two garbage bags and dragged him to the car, but Shalleck was too heavy for the men to lift into the car. The men left Shalleck’s body in the driveway.

The men put the paddle and the knife in a garbage bag to take with them. The men also took a Fossil watch and a ring and some change from the house. Ditto wrote himself a check in the amount of $450 from Shalleck’s checkbook. The men pawned the ring, and Ditto kept the watch for himself. Puglisi and Ditto had discussed robbing Shalleck while they were at dinner. According to Puglisi, that was Ditto’s plan. Puglisi later threw the garbage bag containing the knives in the in-tracoastal in Fort Lauderdale. Puglisi stated that he was in love with Ditto and went along -with Ditto’s plan to rob and kill Shalleck because he did not “realize the seriousness of the consequences.”

Investigator Anderson reiterated most of Crawford’s testimony regarding their initial meeting with Puglisi, the manner of contact, and their time together in the police vehicle and at the police station. Anderson patted Puglisi down prior to entering the interrogation room with him for purposes of officer safety.

The trial court denied the motion, on the grounds that Puglisi was not in custody when he spoke to the police and his statements and consent were voluntarily and knowingly given. Puglisi’s renewed objection to admission of the evidence at trial was overruled.

In addition to the evidence adduced at the hearing on the motion to suppress, the following was proven during trial. On Monday, February 6, 2006, the day after the Super Bowl, a maintenance man at the Royal Manor Mobile Home Park noticed some trash bags on the driveway at a residence. When the bags had not been moved the next day, he investigated and discovered Shalleck’s body beneath the bags. He had been stabbed thirty-seven times and died as a result of multiple stab wounds and blunt head trauma. Some injuries to his face could have been consistent with having been caused by having a pillow pressed against him, but they were not a cause of death.

Police found blood inside the master bedroom and master bath of the home, as well as a couple of broken knife blades and broken glass. Over defense objection, the State introduced thirteen photographs of the bloody scene. A video of the crime scene was also shown to the jury.

Joseph Carney, a friend of Puglisi’s, visited him in jail several times after his arrest. Puglisi initially told Carney that he had nothing to do with the killing, but later he admitted to being present. Carney went to a jewelry store Puglisi told him about, where he found Shalleck’s ring which had been pawned. On Carney’s last visit with Puglisi, he told Puglisi that he did not believe his protestations of innocence. Puglisi became upset and angrily told Carney “I killed the old son of a bitch, now what do you want out of me.” Puglisi then began crying.

The trash bags covering Shalleck’s body were similar to a trash bag brought from Puglisi’s place of work. Eyeglasses taken from Rex Ditto had blood stains on one of the lenses. A handwriting expert testified that the handwriting on the check written on Shalleck’s account and directions to Shalleck’s home were written by Puglisi. A DNA expert testified that the only DNA samples found at the scene of the homicide for which Puglisi could not be excluded were those found on a pillow.

During trial, the State learned during an interview of Michael Zimmerman, who had shared a cell with Ditto, that Ditto claimed he was solely responsible for the murder and that Puglisi had done nothing. Accordingly, the State served its Brady Notice on June 23, 2008, in which it provided notice of the following facts:

1.On June 21, 2008, the State took the deposition of Michael Zimmerman who stated that on June 12, 2008, he was in a holding cell with Rex Ditto and that Ditto told him that he was brought down by the State to testify against Puglisi. He stated however that he would say that he did everything and that Puglisi did nothing.
2. After this deposition, the undersigned, and State Attorney Investigator William [Fraser], went to the Palm Beach County Sheriffs Office and met with Rex Ditto. When confronted with Zimmerman’s statement, Ditto acknowledged the statement to Zimmerman and that the statement was true. He said that he made his original statements to avoid getting the death penalty.
3. When asked how he would testify if called by either side to the witness stand, he stated that he would probably lie and testify consistently with his previous statements.

During a hearing on June 23, 2008, defense counsel moved for a mistrial in light of the new information regarding Ditto’s testimony. The State advised the court of the history of inconsistent statements by Ditto and explained that defense counsel knew of the inconsistencies as of October 2007— Ditto had been changing his story for some time.

The record indicated that between October 2007 and the time of trial, Ditto had repeatedly changed his version of events. Prior to entering a plea of guilty, Ditto stated that he was completely to blame for the murder and that Puglisi was not involved. That information was provided to Puglisi’s defense counsel at that time. Ditto later told the State he had lied in his previous statement, and that if he was called to testify he would explain that both he and Puglisi participated in significant acts which caused the death of Shalleck. The State did not call Ditto because he was not credible. The State argued that defense counsel had access to Ditto and knew of his change in story long before trial — if defense counsel wanted to call him as a witness, they did so at their own risk.

Defense counsel informed the court that Zimmerman had stated that Ditto made like statements back in 2006. Counsel acknowledged that Ditto made various statements, but wanted to focus on the fact that Ditto had explained that his prior statements implicating Puglisi were made in an effort to avoid the death penalty. The State responded that Ditto implicated Pu-glisi to the police before he ever knew the death penalty was a possibility in his case. The court denied the motion for mistrial but allowed defense counsel to depose Ditto once more before deciding whether to call'him as a witness.

Following Ditto’s deposition, defense counsel renewed its motion for mistrial and advised the court that Ditto had taken all the blame for the murder and maintained that Puglisi was merely present. Counsel explained that Ditto stated in a February 2008 deposition that both men were responsible for the murder and that, until the State’s Brady notice, she had no reason to believe Ditto would testify any differently. In order to be able to call Ditto, defense counsel needed to conduct an advanced investigation so a jury could know the entire picture of Ditto’s testimony. The trial court denied the motion for mistrial and remained in recess until the following morning in an effort to give defense counsel time to gather witnesses who would corroborate Ditto’s most recent account.

The following morning, defense counsel advised the court they would not call Ditto as a witness. Puglisi stated that he would like to call Ditto and reiterated that he and his attorneys disagree often. Puglisi told the court that he believed he had nothing to lose by calling Ditto. The court ultimately refused to allow Puglisi to call Ditto as a witness and explained to Puglisi that he had excellent attorneys who had discussed at length the issue of whether to call Ditto. Puglisi did not put on any witnesses. Following deliberation, the jury found Puglisi guilty as charged.

Puglisi first contends the trial court erred in refusing to allow him to call Ditto as a witness despite defense counsel’s determination that calling Ditto would not be of benefit to Puglisi’s case. On this point, we find the decision of United States v. Burke, 257 F.3d 1321 (11th Cir.2001), particularly instructive:

The Supreme Court has said that a defendant has the ultimate authority to make fundamental decisions for his case. The Court has listed four decisions which it characterizes as fundamental: whether to plead guilty, waive a jury, testify in his or her own behalf or to take an appeal. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). But this list is all the Supreme Court has said about fundamental rights that belong solely to the defendant for decision.
... [W]e decline to expand the circumstances that erode defense counsel’s authority at trial. Defense counsel in a criminal trial is more than an adviser to a client with the client’s having the final say at each point. He is an officer of the court and a professional advocate pursuing a result-almost always, acquittal-within the confines of the law; his chief reason for being present is to exercise his professional judgment to decide tactics.
Federal courts are “forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” Douglas v. Jeannette, 319 U.S. 157, 63 S.Ct. 877, 879, 87 L.Ed. 1324 (1943) (Jackson, J., concurring in part and dissenting in part). When the defendant is given the last word about how his case will be tried, the defendant becomes his own trial lawyer. If we add to the list of circumstances in which a defendant can trump his counsel’s decision, the adversarial system becomes less effective as the opinions of lay persons are substituted for the judgment of legally trained counsel. The sound functioning of the adversarial system is critical to the American system of criminal justice. We intend to defend it.

Id. at 1323. Determining which witnesses should be called by the defense is not a fundamental decision to be made by the defendant himself. The trial court properly denied Puglisi’s demands that Ditto be called to testify because such a decision is better made by a professional advocate who is considering not just what the anticipated testimony might be, but issues of credibility and potential harm to the defendant as well.

Relying primarily on Blanco v. State, 452 So.2d 520 (Fla.1984), Puglisi maintains that Florida law holds that the ultimate decision of whom to call as a witness is to be made by the defendant. In Blanco, the trial court allowed the defendant to call witnesses against defense counsel’s advice when defendant insisted on calling them even after defense counsel’s repeated warnings that such a decision was not in his best interest. Id. at 524. On appeal, the defendant argued the trial court erred by allowing him to call the witnesses, and the Florida Supreme Court determined that, under the circumstances, defendant could not be heard to complain of error on appeal. Id. The court held that which witnesses are called on a defendant’s behalf ultimately is the defendant’s decision. Id. (relying on Milligan v. State, 177 So.2d 75 (Fla. 2d DCA 1965)). We find Blanco inapposite. The Supreme Court’s holding that the trial court allowing defendant to call the witnesses in Blanco did not constitute reversible error does not mean that the trial court’s refusal to allow Puglisi to call Ditto in the instant case is reversible error.

As to Puglisi’s argument that the trial court erred in denying defense counsel’s motion for a continuance after the State announced new evidence that Ditto made exculpatory statements about Pugli-si, we are unconvinced. A trial court’s ruling on a motion for continuance is reviewed for an abuse of discretion. Porter v. State, 736 So.2d 716, 717 (Fla. 2d DCA 1999). An abuse of discretion is generally not found unless the trial court’s ruling results in undue prejudice to the defendant. D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003). The record shows that defense counsel knew Ditto had changed his account of the murder numerous times between his arrest and Puglisi’s trial. There was no surprise to defense counsel, and thus, the trial court did not abuse its discretion in denying the motion for continuance.

Puglisi contends the trial court erred in denying his motion to suppress statements because a reasonable person treated as Puglisi would have felt his liberty was constrained. “In reviewing an order on a motion to suppress, an appellate court should defer to the trial court’s factual findings but review de novo the application of the law to the facts.” Dixon v. State, 36 So.3d 920, 923 (Fla. 4th DCA 2010). Officers Crawford and Anderson, and Puglisi’s employer offered competent substantial evidence that Puglisi cooperated with the police of his own accord. Pu-glisi set up the time and place for the initial meeting. Puglisi agreed to assist the officers in their investigation as long as it was okay with his employer. Crawford and Anderson’s tone remained conversational and informal throughout the encounter. There was never any physical contact between the officers and Puglisi. Puglisi also signed several consent forms allowing the officers to take his fingerprints, his DNA, search his home, and search his vehicle. On this record, the trial court was correct in denying Puglisi’s motion to suppress.

Finally, Puglisi asks this court to reverse and remand for a new trial because the trial court abused its discretion in admitting photographs which had little probative value and were intended to inflame the jury. Admission of photographs is within the discretion of the trial court and will not be overturned on appeal absent a clear abuse of that discretion. Bates v. State, 3 So.3d 1091, 1107 (Fla.2009). Relevancy, not necessity, is the test for admissibility of photographs into evidence. Welch v. State, 992 So.2d 206, 216 (Fla.2008) (citations omitted). Even if the photographs are relevant, the trial court must determine whether the portrayal is so gruesome and inflammatory that it creates an undue prejudice in the minds of the jurors. Id. at 216. The photographs at issue depicted blood spatter in two different rooms — the master bedroom and bathroom — indicating the murder occurred in two different rooms. Thus, the pictures were relevant to show premeditation.

For the foregoing reasons, we affirm Puglisi’s judgment and sentence. As to any other issues raised by Puglisi on appeal, we are unconvinced.

Affirmed.

WARNER and FARMER, JJ., concur.

On Motion for Rehearing and Suggestion of Certification of Conflict

PER CURIAM.

We deny appellant’s motion for rehearing, but we grant his motion for certification of conflict. To the extent our slip opinion, Puglisi v. State, No. 4D08-3056, 2010 WL 5173843 (Fla. 4th DCA Dec.22, 2010), conflicts with the opinion of the Fifth District Court of Appeal in Cain v. State, 565 So.2d 875 (Fla. 5th DCA 1990), we certify conflict to the Supreme Court of Florida.

WARNER and POLEN, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Judge Farmer could not participate in the rehearing due to his retirement; the chief judge approved the issuance of this opinion with the concurrence of two judges.


author: BENTON, C.J.

text:
    Laurie GREEN, Appellant, v. Mike JORGENSEN and Elizabeth Domnisch, Appellees.
    No. 1D10-3721.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2011.
    Rehearing Denied March 10, 2011.

      John S. Mills of the Mills Firm, P.A., Jacksonville, Niels P. Murphy and Geddes

      D. Anderson, Jr. of Murphy & Anderson, P.A., Jacksonville, for Appellant.
    Seth Schwartz, Caleb D. Rowland, and Jessica R. Rieffel of the Schwartz Law Group, P.A., Jacksonville, for Appellee Mike Jorgensen.
   BENTON, C.J.

Laurie Green appeals denial of her motion to quash service of process, on grounds the trial court should have assumed the affidavits before it were true in deciding the motion. The affidavits before the trial court can all be reconciled consistently with her contention that the house where papers were served on her sister was not her usual place of abode at the time. Accordingly, we reverse the denial of the motion to quash.

We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) to review non-final orders that determine personal jurisdiction. See Fisher v. Int’l Longshoremen’s Ass’n, 827 So.2d 1096, 1097 (Fla. 1st DCA 2002). At issue here is section 48.031(1)(a), Florida Statutes (2008), which allows for substitute service by “leaving the copies at [the defendant’s] usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.”

“The requirement ‘usual place of abode’ means ‘the place where the defendant is actually living at the time of service.’ ” Thompson v. State, Dep’t of Revenue, 867 So.2d 603, 605 (Fla. 1st DCA 2004) (quoting Shurman v. Atl. Mortgage & Inv. Corp., 795 So.2d 952, 954 (Fla. 2001)). “The word ‘abode’ means ‘one’s fixed place of residence for the time being when service is made.’ If a person has more than one residence, he must be served at the residence in which he is actually living at the time of service.” Toms v. Arnco Constr., Inc., 867 So.2d 583, 586 (Fla. 5th DCA 2004) (quoting State ex rel. Merritt v. Heffeman, 142 Fla. 496, 195 So. 145, 147 (1940)).

The standard of review for a non-final order that determines jurisdiction over a person in a case like this is de novo. See Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 502 (Fla. 4th DCA 2010) (citing Re-Employment Servs. Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 470 (Fla. 5th DCA 2007)). The trial court did not order an evidentiary hearing.

After Mike Jorgensen filed a complaint against Ms. Green on November 19, 2008, a private process server delivered suit papers to Ms. Green’s sister, Elizabeth Domnisch, at the sister’s house in Pennsylvania (the Pennsylvania address) on December 3, 2008. The return of service (unsigned as far as the record reveals) recited that the process server “substitute served” Ms. Green’s sister at her usual place of abode, but also stated that, when the process server knocked on the door, a woman with a baby in her arms came to the door and yelled, “[S]he does not live here.” The return reported, moreover, that the process server spoke with a neighbor who disavowed any knowledge of Ms. Green, telling him that “a” woman (with a child) lived at the Pennsylvania address.

Ms. Green originally filed a motion to dismiss for insufficient service of process, attaching four supporting affidavits. Her sister and brother-in-law swore that they lived at the Pennsylvania address with each other (and their child), and that Ms. Green did not live there at the time of service. The other two affidavits were from Chicagoans, both of whom averred that they personally knew Ms. Green, saw her on a daily basis, and that she was living in Chicago on the date the papers were left at the Pennsylvania address.

In response to this motion, Mr. Jorgen-sen filed a certified copy of Ms. Green’s Florida Department of Highway Safety and Motor Vehicles record, which listed the Pennsylvania address as Ms. Green’s home address, and indicated that she had provided the address in August of 2008. He also filed an arrest report, dated November 19, 2008 — only fourteen days before the papers were delivered in Pennsylvania — in which Ms. Green had provided the Pennsylvania address as her home address, and the arresting officer’s affidavit which averred that he habitually verified arrestees’ biographical information, including home addresses, during booking.

The trial court denied the motion to dismiss for insufficient service of process, noting the absence of any affidavit executed by Ms. Green herself. Ms. Green then filed an emergency motion for reconsideration, to which she attached her own personal affidavit, swearing that, at the time of service, she was living in Chicago, at an address she provided, and that she began living at the Chicago address on November 23, 2008. The trial court found her personal affidavit sufficient to warrant de novo reconsideration of the motion to dismiss, which, however, the trial court directed be refiled as a motion to quash service of process.

Thereupon Ms. Green filed a motion to quash service of process, arguing that she was not living at the Pennsylvania address at the time of service, was not served at her “usual place of abode,” and that service of process on her sister was insufficient under section 48.031, Florida Statutes. To this motion, she attached a new personal affidavit identical in substance to the first personal affidavit she filed, except that she added “W” before the street name in her Chicago address. Ms. Green’s driver’s license number in the jurat of the new affidavit was blacked out, with what appeared to be the notary public’s initials placed next to the deletion. Ms. Green also attached to the motion to quash service of process all four affidavits she had originally attached to her motion to dismiss, along with the arrest report, and the return of service.

At a hearing on the motion, Mr. Jorgen-sen argued that Ms. Green had altered the jurat in her personal affidavit. He offered an affidavit of the notary public, who denied blacking out the driver’s license number and affixing his initials next to the deletion. Ms. Green later filed a counter-affidavit asserting that she had requested the notary public to omit her driver’s license number, that he did not do so at first, but that, after he walked away to discuss the matter with his co-workers, he slid the affidavit back to Ms. Green with a black line through the driver’s license number and his initials next to the line.

The trial court denied the motion to quash, finding that Ms. Green had imper-missibly altered the jurat in an affidavit submitted to the court and that her actions effecting the alteration destroyed or impaired the credibility both of her personal affidavit and of the affidavits filed by the two (other) Chicago residents. The trial court also found Ms. Green’s sister’s affidavit not credible, because of the family relationship, a rationale that may have extended to her brother-in-law’s affidavit, as well. The trial court declined to quash service of process, ruling that all five affidavits offered in support of the motion to quash were unworthy of belief and that Ms. Green had failed to meet her “burden.”

But the “burden of proof to sustain the validity of service of process is upon the person who seeks to invoke the jurisdiction of the court,” i. e., the plaintiff, not the defendant. Thompson, 867 So.2d at 605 (citing M.J.W. v. Dep’t of Children & Families, 825 So.2d 1038, 1041 (Fla. 1st DCA 2002)). The general rule is that a “ ‘process server’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.’ ” Id. (quoting Telf Corp. v. Gomez, 671 So.2d 818 (Fla. 3d DCA 1996)). “If the party challenging service ‘makes a pri-ma facie showing that the return is defective, then the burden shifts to the person acting under the substituted service provision to prove valid service.’ ” Haueter-Herranz v. Romero, 975 So.2d 511, 518 (Fla. 2d DCA 2008) (quoting Gonzalez v. Totalbank, 472 So.2d 861, 864 n. 1 (Fla. 3d DCA 1985)).

In the present case, while suit papers were presumably delivered on December 3, 2008, as reported, the return of service gave rise to no presumption that Ms. Green lived with her sister at the time. See Cordova v. Jolcover, 942 So.2d 1045, 1047 (Fla. 2d DCA 2006). In Cordova, the process server who served papers on Mr. Cordova’s estranged wife (because he could not locate Mr. Cordova, the defendant) noted in the affidavit of service that the estranged wife “stated Husband left the country.” Id. The Second District found that “[o]n its face, the affidavit of service raised a concern as to Mr. Cordo-va’s usual place of abode.” Id. In the present case, too, the return of service, quite apart from technical irregularities and deficiencies, raises substantial questions as to whether the Pennsylvania address was Ms. Green’s usual place of abode at the time the papers were delivered, and so fails to give rise to a presumption of valid, substitute service.

Absent conflicting affidavits on the only material issue here — Ms. Green’s place of abode — there was no obligation for the trial court to conduct an evidentiary hearing. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989) (holding that, where affidavits cannot be reconciled, the trial court will have to hold a limited evidentiary hearing to determine the jurisdictional issue); Mowrey Elevator Co. of Fla., Inc. v. Automated Integration, Inc., 745 So.2d 1046, 1047 (Fla. 1st DCA 1999) (remanding for an evidentiary hearing where affidavits submitted by the parties conflicted on the “critical” jurisdictional issue). The only conflict in the affidavits submitted in the present case was on the question whether Ms. Green altered the jurat in an affidavit — not on the question where Ms. Green was living on December 3, 2008. There was no need for the trial court to conduct an evidentiary hearing, and it did not do so.

Mr. Jorgensen failed to rebut Ms. Green’s contention that she did not reside at the Pennsylvania address on the date suit papers were delivered. Each party’s documents can all be assumed true and still be reconciled. The Florida driver’s records and arrest report support an inference that Ms. Green was living at the Pennsylvania address at some earlier time. But they do not contradict the five affidavits that Ms. Green filed stating that Ms. Green was not living at the Pennsylvania address at the time her sister received the papers. Ms. Green’s affidavit states that she moved to Chicago on November 23, 2008, and no affidavit before the learned trial judge said otherwise.

Without an evidentiary hearing, it was not for the trial court to weigh the credibility of affidavits in no way inherently implausible. See Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle, 955 So.2d 598, 603 (Fla. 2d DCA 2007) (“the question for the trial court was whether, taking the allegations in the affidavits as true, there was a basis for jurisdiction”). Accordingly, we reverse and remand with instructions to grant the motion to quash service of process.

Reversed and remanded, with instructions.

WETHERELL and ROWE, JJ., concur.

      . At the time, Ms. Domnisch was not a party to the lawsuit. The complaint was subsequently amended to add a conspiracy count naming Ms. Domnisch as a co-conspirator and defendant.

      . This form allegation notwithstanding, it was clear from the return as a whole that the process server had no personal knowledge regarding Ms. Green's residence and received no information (except from the plaintiff or his counsel) that supported the view that Ms. Green was living with her sister at the time.

      . The affidavit with the lined-through jurat was a sixth (duplicative) affidavit.


author: CRENSHAW, Judge.

text:
    STATE of Florida, Appellant, v. Jayson WHITESIDE, Appellee.
    No. 2D10-339.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2011.
    Rehearing Denied Feb. 2, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee.
   CRENSHAW, Judge.

The State appeals Jayson Whiteside’s sentences for burglary of a dwelling and dealing in stolen property. After pleading no contest to the charges, Whiteside was sentenced to two concurrent eighteen-month terms of imprisonment. The State argues that the trial court erred in reducing Whiteside’s sentence when the criminal punishment code scoresheet reflected a lowest permissible sentence of 28.1 months. Because the trial court failed to articulate a valid legal ground for the departure, we reverse and remand for further proceedings.

In October 2009, Whiteside was charged with burglary and dealing in stolen property for allegedly entering a garage, stealing a lawnmower, and then pawning it. Whiteside’s criminal punishment score-sheet reflected 28.1 months as the lowest permissible prison sentence. At a plea hearing, Whiteside sought a departure sentence. The trial court ultimately accepted Whiteside’s offer of eighteen months’ prison and gave the following explanation:

[M]y reason is going to be that I think this is a factually mitigated burglary. It’s a crime of opportunity, daytime, going into the garage and stealing a lawnmower. And I think the guidelines ov-eraccentuate. While it is a legitimate residential burglary, the dealing in stolen property, not all burglaries are the same. And I think there is some mitigation, given the facts of this case.
I’ve sat here for 15 years and heard hundreds of different burglaries and this would be one of the least aggravated. And I think that’s the reason to take into consideration those facts and reduce the sentence from what the guidelines call for, which is 28, down to 18 months. And that’s the reason that I’m going to do that. I know that’s over the State’s strong objection.

Whiteside pleaded no contest to the charges, and the trial court sentenced him to two concurrent eighteen-month terms of imprisonment.

“A trial court’s decision whether to depart from the guidelines is a two-part process.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). “First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1).” Id. “Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.” Id. at 1068. Section 921.0026(1), Florida Statutes (2009), prohibits a downward departure from the lowest permissible sentence “unless there are circumstances or factors that reasonably justify the downward departure.” The statute provides a nonexclusive list of reasons for a departure, but “a downward departure for reasons not set out by statute is permissible only if supported by competent, substantial evidence and not otherwise prohibited.” State v. Betancourt, 40 So.Sd 53, 56 (Fla. 5th DCA 2010).

Here the trial court failed to satisfy step one of the departure process because it did not articulate a valid legal ground for Whiteside’s departure sentence. The reasons stated on the record for the departure were that the crime was a “factually mitigated burglary” and the guidelines “overaccentuate.” Although the trial court points out that the burglary was a “crime of opportunity” and one of the “least aggravated” burglaries the court had seen, we do not find these factors satisfy the enumerated reasons for departure listed in section 921.0026(2). The trial court’s statements at the hearing that “I’m not sure that the guidelines at 28 is appropriate under the circumstances,” that “the guidelines overstat[e] what I think the punishment should be,” and that “I think the guidelines overaccentuate,” predominately focus on the trial court’s dissatisfaction with the guidelines. And dissatisfaction with the guidelines is not an appropriate legal ground for imposing a departure sentence. Williams v. State, 492 So.2d 1308, 1309 (Fla.1986) (“It is also improper to depart based on the trial court’s perception that the recommended sentence under the guidelines is not commensurate with the seriousness of the crime.”); Scurry v. State, 489 So.2d 25, 29 (Fla.1986) (“[T]hat a lesser sentence is not commensurate with the seriousness of the crime, flies in the face of the rationale for the guidelines. In effect this reason reflects a trial judge’s disagreement with the Sentencing Guidelines Commission and is not a sufficient reason for departure.”); Ivry v. State, 534 So.2d 830, 831 (Fla. 2d DCA 1988) (“[T]he trial court’s dissatisfaction with the sentencing guidelines is not a valid departure reason.”).

Because the trial court failed to provide sufficient legal grounds for Whiteside’s departure sentence, we reverse and remand to the trial court for further proceedings consistent with this opinion. On remand, Whiteside shall be afforded an opportunity to withdraw his plea.

Reversed and remanded.

CASANUEVA, C.J., and LaROSE, J., Concur.

      . The trial court implies that the crime was unsophisticated, but this quality alone does not satisfy the statutory factor listed in section 921.0026(2)(j), which also requires the trial court to find the crime was an isolated incident for which the defendant has shown remorse.


text:
    Clifton MASSALINE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6099.
    District Court of Appeal of Florida, First District.
    Jan. 10, 2011.
    Rehearing Denied March 11, 2011.
    Clifton Massaline, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, KAHN, and THOMAS, JJ., concur.


text:
    Keith J. POWELL, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-5813.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Keith J. Powell, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    Larry James BARBER, Appellant, v. FLORIDA PAROLE COMMISSION, and Walter A. McNeil, Secretary, Florida Department of Corrections, Appellees.
    No. 1D10-5955.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2011.
    Rehearing Denied March 18, 2011.
    Larry James Barber, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. See Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003). Any remedy the appellant may have lies with the circuit court. See generally Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

BENTON, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Claude CAMPBELL, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-4218.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.

      Claude Campbell, Petitioner.
    Kathleen Von Hoene, General Counsel, Florida Department of Corrections, and Sheron Wells, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted and the Circuit Court for Leon County is directed to enter a final order in the matter of Campbell v. McNeil, 2009-CA-003802, within a reasonable time, not to exceed 60 days from issuance of mandate in this cause.

PETITION GRANTED.

WOLF, KAHN, and THOMAS, JJ., concur.


text:
    Brett Zane BASS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5226.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Brett Zane Bass, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Brett Zane Bass is hereby afforded belated appeal from the order denying postconvictiori relief in Santa Rosa County case number 04-115-CFA. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, KAHN, and THOMAS, JJ., concur.


text:
    Sherman Dwain MILTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5703.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    Jeffrey E. Lewis, Criminal Conflict & Civil Regional Counsel, and Salvatore D. Mollica, Assistant Regional Counsel, Starke, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s “Motion for Delayed Appeal” has been treated by the court as a response to our order to show cause questioning the timeliness of the notice of appeal. Inasmuch as the response fails to demonstrate that the notice of appeal was timely filed, we dismiss the appeal for lack of jurisdiction. However, in light of the allegation that appellant timely made his desire for an appeal known to counsel and fault for the unexplained delay in filing of the notice of appeal cannot be attributed to appellant himself, this disposition is without prejudice to the filing of a properly sworn petition seeking belated appeal complying with the provisions of Florida Rule of Appellate Procedure 9.141(c).

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Howard Jack POLK, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2605.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.
    Howard Jack Polk, pro se.
   ALTENBERND, Judge.

Howard Jack Polk appeals the trial court’s order summarily denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the order but certify a question to the supreme court at the end of this opinion. We conclude that this court’s decision in Ely v. State, 13 So.3d 167 (Fla. 2d DCA 2009), which requires a hearing on certain claims of misadvice of counsel, does not extend to a claim that a defendant’s lawyer advised him to lie under oath at the plea hearing as to whether the lawyer had made any promises about the length of his sentence.

Mr. Polk has a significant criminal history and has been in prison on several prior occasions. It does not appear, however, that he has ever received a term of imprisonment longer than a few years. He is now almost fifty years old.

He was charged with several new offenses between 2006 and 2008. The three most serious offenses were charges of burglary of an occupied dwelling. He attended a plea hearing before Judge Estrada on August 11, 2008, where he entered an open plea. The transcript of the hearing is in our record and demonstrates that the trial court conducted a thorough discussion of the plea. If there was a written plea agreement, it is not in our record.

At the plea hearing, Mr. Polk’s attorney informed him in open court that he would receive a minimum sentence of fifteen years’ imprisonment because the trial court was sentencing him as a prison re-leasee reoffender. His attorney then advised him the State was requesting that the trial court also sentence him as a habitual offender and that if the sentences ran consecutively, the trial court could sentence him to up to ninety years in prison. Mr. Polk acknowledged on the record that he understood these facts.

When the trial judge took over questioning, the record reflects the following:

THE COURT: Mr. Polk, you’re under oath. At this time your attorney has asked you a series of questions regarding this plea which will be straight up with no agreement to the Court— with no agreement with the Court, do you understand that?
THE DEFENDANT: Yes, Sir.
THE COURT: No one has promised you or told you that you would receive a certain sentence in this matter? In other words somebody didn’t tell you, you know even if you do qualify as PRR, and you understand what that means now, right?
THE DEFENDANT: Yes, Sir.
THE COURT: Or as a habitual offender that Judge Estrada’s only going to give you this much time and he might run it concurrent, did anybody tell you that?
THE DEFENDANT: No, Sir.
THE COURT: So you understand, sir, all what you’re facing in terms of the sentencing enhancements if you’re found to qualify under the PRR statute or under habitual offender, do you understand that?
THE DEFENDANT: Yes, Sir.
THE COURT: And that’s an and/or, do you understand that?
THE DEFENDANT: Yes, Sir.
THE COURT: Has your attorney fully explained to you the ramifications of entering such a plea straight up to the Court?
THE DEFENDANT: He has.

The plea colloquy continued and the trial court discussed each count with Mr. Polk. The trial court then reminded Mr. Polk again that he was testifying under oath and confirmed that no one had promised him anything or threatened him in any way in order to convince him to plead no contest to these offenses. At the end of the hearing, the trial court scheduled a sentencing hearing for a later date so that it could have the benefit of a pretrial sentencing investigation and Mr. Polk could have time to develop arguments against a habitual offender sentence.

The sentencing hearing occurred on October 8, 2008. Another attorney represented Mr. Polk at the sentencing hearing. The transcript indicates that the attorney had limited knowledge of the case prior to the hearing. At the conclusion of the hearing, the trial court imposed three consecutive terms of thirty years, for a total of ninety years. Mr. Polk appealed his judgments and sentences. His attorney filed an Anders brief and this court affirmed in 2009. See Polk v. State, 23 So.3d 119 (Fla. 2d DCA 2009) (table decision).

In his timely motion pursuant to Florida Rule of Criminal Procedure 3.850, Mr. Polk makes eight claims. Only one merits discussion. In his first claim, he maintains that his lawyer promised him that he would definitely receive a sentence of fifteen years, but no more than twenty years’ imprisonment, if he cooperated with the court and entered an open no contest plea. As Mr. Polk states:

In this case, prejudice is attributable to trial counsel and had a direct impact on the overall 90-year sentence obtained. The result of the proceedings were fundamentally unfair and unreliable.
The attorney here, ... assured the Petitioner that he would receive no more than 20 years if he pled open to Judge Estrada, and that he may get (15) years, but nó more than 20. He stated that if he went to trial, he would receive at least 30-years, and possibly 90-years. He stated that he knew how Judge Estrada operated, and that by pleading “straight up”, there was no way he would get more than 20-years.
[The attorney] stated by admitting his guilt, the judge would sentence him to at least 15 years because he had to be based on the reoffender status (PRR) and that the worst case would be 20 years. He further instructed the Petitioner to answer in the negative if asked by the Judge if he had been promised anything, as he would not accept the plea otherwise. He stated the Judge would ask several questions in which he should state he understood. He stated without these questions, the judge would not accept his plea and he would have to go to trial. [The attorney] further assured the Petitioner that no matter what happened, he could appeal the sentence(s).

Mr. Polk further explains that he would not have pleaded in this case and would have gone to trial if he thought he was going to receive a sentence that would never allow for his release during his lifetime.

It is well accepted that misrepresentations by counsel as to the length of a sentence can be grounds to withdraw a guilty plea. See Thompson v. State, 351 So.2d 701, 701 (Fla.1977). In Thompson, the defendant pleaded under a misunderstanding that resulted in a sentence of death. Id. The trial court had not asked any questions at the plea hearing as to whether the defendant had received any promises preceding the plea. Since this rather extreme example, the case law has often struggled to determine what constitutes a misrepresentation and whether the content of a plea colloquy is sufficient to conclusively refute a claim of detrimental reliance on a lawyer’s misrepresentation concerning the sentence that would be imposed on a plea.

In State v. Leroux, 689 So.2d 235 (Fla.1996), the court considered a case in which the defendant negotiated a sentence based on misinformation about gain time credits. At the plea hearing, the trial court asked the defendant a basic question of whether “anyone” had threatened him or promised him “anything.” Id. at 235-36. The court held that this simple inquiry might be evidence against the defendant in this context, but it did not conclusively refute the claim. Id. at 237. The opinion provided extensive guidance for trial courts conducting plea colloquies, encouraging judges to ask more questions about gain time and to inform defendants that they cannot rely on anyone’s estimate of credit under the complex system that governed gain time in the early 1990s.

The appellate courts have extensively discussed Leroux in subsequent case law, and plea colloquies have become far more sophisticated over time. The issue of misrepresentation has moved away from questions of estimates about jail credit to other issues. For example, in Scheele v. State, 953 So.2d 782, 783 (Fla. 4th DCA 2007), the Fourth District considered a case in which the defendant claimed his lawyer promised him he would receive a sentence of no more than ten years’ imprisonment. This was not a claim that the lawyer had predicted or given advice on such a sentence, but that the lawyer had affirmatively promised that the sentence would not exceed ten years.

In deciding the case, the Fourth District relied on the defendant’s plea colloquy, which was similar to the plea colloquy in this case, to hold that the transcript of that hearing conclusively refuted the claim. Id. at 785. Relying on the discussion in Le-roux about more specific plea colloquies on the issue of jail credit, the Fourth District determined that comparable questions about the length of the sentence could refute a claim of misadvice. Id. at 784-85.

In Ely v. State, 13 So.3d 167 (Fla. 2d DCA 2009), this court refused to follow Scheele. In that case there was confusion about the scoresheet, and the lawyer assured the client that the worst he could receive under a plea would be a nonprison sanction. Id. at 168. The defendant actually received a five-year term of imprisonment. Id. We explained that a trial court’s question about the possibility of a sentence up to seven years did not necessarily advise the defendant that he could not rely on his attorney’s representations. Id. at 169-70.

Mr. Polk’s motion takes this issue a step farther. Under oath, he claims his attorney promised that his sentence would not exceed twenty years’ imprisonment and advised him that in order to achieve this result, he had to tell the judge he had not been promised anything. In short, he claims his lawyer instructed him to lie during the plea hearing. The issue then becomes whether Mr. Polk is bound by the answers he gave during the plea colloquy in the face of his own sworn allegation that he was instructed to lie during that plea colloquy.

In a perfect world, we could reject this claim on its face because an officer of the court would never advise a client to lie to the judge. Indeed, in this case we have not disclosed the name of the attorney because there is nothing to substantiate Mr. Polk’s claim. But this is not a perfect world. We cannot deny that there may be a rare attorney who does, in fact, assure his or her clients of results at such hearings and further instructs the clients to answer the questions in the proper way to get the desired result.

Under a broad reading of this court’s ruling in Ely, one could conclude that Mr. Polk would be entitled to a hearing on his claim. Under the analysis in Scheele, he would not be entitled to such a hearing. As a practical matter, we are concerned that a broad reading of Ely would make such a claim easy for practically any prisoner who had entered a plea to allege. Such a claim would seemingly require an evidentiary hearing to resolve the facts. We anticipate that the trial court hearing such a case would almost always accept the testimony of the attorney when it conflicts with that of a convicted felon. Even if such a claim is theoretically sufficient on its face, we question whether such a claim is a productive use of scarce judicial resources.

In essence, Mr. Polk’s claim, ironically under oath in his motion, is that he lied under oath at the plea colloquy because his lawyer instructed him to do so. We conclude that a defendant should be estopped to receive an evidentiary hearing on a postconviction claim when the basis of the claim is that he lied under oath at the relevant hearing. See Iacono v. State, 930 So.2d 829, 831-32 (Fla. 4th DCA 2006) (recognizing that defendants “are bound by their sworn answers” during a plea colloquy).

Given the conflict between Ely and Scheele, and our own recognition that our outcome is based more on practicalities than pure logic, we affirm the order on appeal, while certifying the following question of great public importance:

MAY PRISONERS IN POSTCONVTCTION PROCEEDINGS PREVENT THE ANSWERS THEY GAVE UNDER OATH AT PLEA OR SENTENCING HEARINGS FROM CONCLUSIVELY REFUTING THEIR CLAIM BY ALLEGING THAT THEIR ATTORNEY INSTRUCTED THEM TO LIE ABOUT WHETHER THE ATTORNEY MADE ANY PROMISES BEFORE THEY ENTERED THEIR PLEAS?

Affirmed.

NORTHCUTT and VILLANTI, JJ., Concur.


author: WALLACE, Judge.

text:
    LEE MEMORIAL HEALTH SYSTEM, d/b/a Healthpark Medical Center, Petitioner, v. Jeffrey SMITH and Melissa Smith, individually, and as Parents and Natural Guardians of Kiarra Summer Smith, a minor, Respondents.
    No. 2D10-1887.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.

      Richard R. Garland and R. Lainie Wilson Harris of Dickinson & Gibbons, P.A., Sarasota, for Petitioner.
    Craig R. Stevens and Chad T. Brazzeal of Morgan & Morgan, P.A., Fort Myers, for Respondents.
   WALLACE, Judge.

Jeffrey Smith and Melissa Smith filed an action against Lee Memorial Health System, d/b/a HealthPark Medical Center, for alleged medical malpractice in the care and treatment of their minor child. Lee Memorial sought a protective order to prohibit the Smiths’ counsel from having communications outside the presence of Lee Memorial’s counsel with the child’s treating physicians who are employed by Lee Memorial. The circuit court entered an order denying the requested protective order, and Lee Memorial petitions for a writ of certiorari to quash the circuit court’s order. We conclude that Florida Rule of Professional Conduct 4-4.2 does not limit the Smiths’ attorneys from communicating with the child’s treating physicians despite the treating physicians’ employment by Lee Memorial. It follows that the circuit court did not depart from the essential requirements of the law in declining to enter the requested protective order. Accordingly, we deny the petition for writ of certiorari.

I. THE FACTS AND PROCEDURAL BACKGROUND

In July 2007, the Smiths’ daughter was born prematurely in a hospital operated by Lee Memorial. The child was immediately admitted to the hospital’s Neonatal Intensive Care Unit (NICU). While in the NICU, the child received neonatal parenteral nutrition through a central venous line.

On August 31, 2009, the Smiths filed a medical malpractice action on behalf of their daughter against Lee Memorial. In their complaint, the Smiths alleged that on or about July 25, 2007, the amount of vitamins and trace elements in the nutritional solution given to their daughter was improperly calculated. The Smiths alleged that as a result of this improper calculation, their daughter received an overdose of trace elements that caused her to suffer a variety of serious, permanent injuries. The injuries alleged in the complaint included permanent neurological damage, lack of normal head growth, developmental delay, spastic quadriparetic cerebral palsy, and visual inattentiveness.

In its answer to the complaint, Lee Memorial admitted that it had fallen below the standard of care in the preparation of the nutritional solution. But Lee Memorial also denied that its failure to comply with the standard of care had caused any injury to the Smiths’ daughter. Lee Memorial also asserted eighteen affirmative defenses.

The child receives care and treatment from a pediatric neurologist and several other physicians who are employed by Lee Memorial. In November 2009, the Smiths moved for a protective order precluding counsel for Lee Memorial “from having ex parte communication[s] with [the child’s] current treating healthcare providers [that are] employed by Lee Memorial Health System.” On January 20, 2010, the circuit court granted the protective order sought by the Smiths. Subsequently, this court granted Lee Memorial’s petition for writ of certiorari and quashed the protective order. Lee Mem’l Health Sys. v. Smith, 40 So.3d 106 (Fla. 2d DCA 2010).

Shortly after the circuit court granted the Smiths’ requested protective order, Lee Memorial filed its own motion for protective order. Lee Memorial sought “an [o]rder prohibiting legal counsel for the [Smiths] from having ex parte communications with [the child’s] current treating healthcare providers that are employed by Lee Memorial Health System.” In support of its motion, Lee Memorial argued that rule 4-4.2 prohibited the Smiths’ counsel from communicating with any of the child’s treating physicians who are also employed by Lee Memorial without its counsel’s consent. After a hearing, the circuit court denied the motion. Lee Memorial’s petition for writ of certiorari followed.

II. THE STANDARD OF REVIEW

“In order to merit certiorari relief, a discovery order must ‘depart [] from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’ ” Lee Mem'l Health Sys., 40 So.3d at 107 (alteration in original) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). The second and third parts of this test are jurisdictional:

[A] petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law. If the jurisdictional prongs of the standard three-part test are not fulfilled, then the petition should be dismissed rather than denied.

Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995).

III. DISCUSSION

On the issue of irreparable harm, Lee Memorial argues that the circuit court’s “order has the effect of allowing release of unauthorized and potentially damaging statements, including in the nature of ‘eat-out-of-the-bag’ material that cannot be remedied by appeal following trial.” Lee Memorial also points to its admission of a failure to meet the applicable standard of care as a factor rendering the prejudice of unguarded communications by its employees with the Smiths’ counsel as especially acute. Finally, Lee Memorial suggests that the circuit court’s refusal to enter the protective order has frustrated Lee Memorial’s effort “to protect itself from the danger of unfair exposure to potential additional liability, which protection is embodied in Florida Rule of Professional Conduct 4-4.2.”

The Smiths do not make a persuasive response to Lee Memorial’s arguments on the issue of irreparable harm. It is difficult for this court to assess the potential prejudice to Lee Memorial — if any — that may result if it is unable to limit and monitor all communications between its employee physicians and the Smiths’ counsel. Nevertheless, we conclude that review by certiorari is appropriate here because orders of the type under review have the potential to result in the disclosure of privileged information and an interference with the attorney-client relationship. See AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675, 677 (Fla. 2d DCA 2006); Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005); Lemieux v. Tandem Health Care of Fla., Inc., 862 So.2d 745, 747-48 (Fla. 2d DCA 2003); Hasan v. Garuar, 34 So.3d 785, 786-87 (Fla. 4th DCA 2010).

We turn now to the question of whether the circuit court’s order departs from the essential requirements of the law. Neither of the parties has directed us to any cases directly on point, and our independent research has not disclosed any. The absence of any authority on point requires an examination of the question presented in light of both the text and the rationale of rule 4-4.2.

Rule 4-4.2(a) provides, in pertinent part, as follows: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.” Here, Lee Memorial asserted “that [the Smiths’] counsel will attempt to communicate with [the child’s] treating physicians employed by [Lee Memorial] and represented by counsel for [Lee Memorial] outside the presence of [its] counsel.” It argued that because the treating physicians were employees of Lee Memorial, they were persons represented by Lee Memorial’s counsel within the meaning of the rule 4^4.2. Thus communications by the Smiths’ counsel with the employee treating physicians — absent consent from Lee Memorial’s attorneys — would be a violation of the rule.

The Smiths respond that rule 4-4.2 does not apply here because their counsel are not seeking to communicate with any Lee Memorial employees involved in the incident that is alleged to have resulted in the child’s injuries. Instead, counsel propose to communicate only with Lee Memorial employee health care providers involved in the treatment of the child. The Smiths conclude that to prohibit such contacts absent consent from Lee Memorial would have two deleterious consequences. First, it would improperly undermine the relationship between the Smiths and their counsel by making it impossible for counsel to speak with the child’s treating physicians. Second, it creates a legal paradox whereby the Smiths can speak to their child’s treating physicians, but counsel— their duly authorized legal representatives — cannot.

Lee Memorial replies that “rule 4-4.2 does not contain any exceptions relating to the substance of what a current employee may communicate.” Instead, Lee Memorial argues that the rule requires that counsel be present during the communication unless consent of opposing counsel is obtained. But the scope of the rule is not as broad as Lee Memorial would have it. First, as the comment to rule 4-4.2 explains, the prohibition against communicating with members of a represented organization is applicable only to three categories of persons or employees: (1) those who supervise, direct, or regularly consult with the organization’s lawyer concerning the matter; (2) those who have the authority to obligate the organization with respect to the matter; or (3) those whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. See also Barfuss v. Diversicare Corp. of Am., 656 So.2d 486, 488 n. 4 (Fla. 2d DCA 1995), disapproved on other grounds by H.B.A. Mgmt., Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla.1997); Browning v. AT & T Paradyne, 838 F.Supp. 1564, 1567 (M.D.Fla.1993). Here, Lee Memorial has not shown (nor has it argued) (1) that any of the child’s treating physicians supervise, direct, or consult with the lawyers concerning the lawsuit; (2) that they have the authority to obligate the organization with respect to the lawsuit; or (3) that the treating physicians’ acts or omissions could in any way be imputed to Lee Memorial in connection with the lawsuit. In addition, there is no evidence that these physicians are “represented by counsel concerning the matter to which the communication relates.” See Fla. Rule of Prof 1 Conduct 4-4.2 cmt. (emphasis added).

In H.B.A. Management the supreme court explained the rule:

[I]t means an attorney cannot ethically communicate with an employee whose actions may impute negligence or criminal liability to the corporation or whose statements may constitute admissions at that time, i.e., at the time the current employee is acting or speaking. These categories clearly identify certain persons whose statements or actions, by virtue of their present status as employees or agents, may directly affect their employer’s legal position.

693 So.2d at 545. This is so because “the purpose of the communication rule is not to protect a corporate party from revelation of prejudicial facts, but rather to preclude interviewing of employees who have authority to bind the corporation.” Id. at 544 (citing Fla. Bar Profl Ethics Comm., Formal Op. 88-14 at 3 (1989)).

Furthermore, in considering Lee Memorial’s arguments, it is appropriate to look at the broader picture. Today, physicians in a variety of specialties are employed by hospitals instead of in stand-alone, independent medical practices. See, e.g., Tarpon Springs Hosp. Found., Inc. v. Anderson, 34 So.3d 742, 744 (Fla. 2d DCA 2010) (obstetrician/gynecologist and nurse midwife were employed by the hospital where the plaintiff delivered her baby). And the fact of the hospital’s ownership of the medical practice and employment of the physicians and others working there may not be readily apparent to the physicians’ patients and the general public. The early to mid-1990s saw a surge in the acquisition of physician practices by hospitals. This trend accelerated again in the latter half of the past decade. Thus, in many communities today, a significant number of the practicing physicians may be employed by a local hospital. This is precisely the situation that the Smiths’ attorneys encountered in this case. Some — if not all — of the child’s treating physicians are Lee Memorial employees.

It is extremely important — if not essential — for plaintiffs counsel in a medical malpractice case to interview and consult with his or her client’s treating physicians. Such informal contacts enable plaintiffs counsel to discover the facts, formulate legal theories, and develop strategies for the case. See Jerome N. Krulewitch, Ex Parte Communications with Corporate Parties: The Scope of the Limitations on Attorney Communications with One of Adverse Interest, 82 Nw. U.L.Rev. 1274, 1278-83 (1988). Although formal depositions may be used to accomplish the same ends, depositions are arguably an inferior means to obtain information necessary for plaintiffs counsel to prepare the case. See id. at 1279-80, 1283. The practical effect of the rule contended for by Lee Memorial would be to eliminate informal contacts when the client’s treating physician or physicians are employed by a defendant hospital. In that event, counsel’s contacts with the client’s treating physicians who are so employed would be limited to formal depositions. Thus the broader question posed by Lee Memorial’s petition is whether such a limitation on informal communications is consistent with the purpose of rule 4-4.2.

The comment to rule 4-4.2 summarizes the rule’s rationale as follows:

This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.

Rule 4-4.2 cmt. We conclude that the stated purposes of rule 4-4.2 would not be served by an interpretation that would prohibit plaintiffs counsel from informal communication with his or her client’s treating physicians — absent consent — simply because of the physicians’ adventitious employment by a defendant hospital.

We seriously doubt that the drafters of rule 4-4.2 and (ABA) Model Rule 4.2 on which it is based anticipated the relatively recent trend toward the employment of physicians by hospitals. This trend is driven by economic and financial forces affecting the medical profession and our health care system. The argument for the application of the rule under the circumstances of this case is based on happenstance — the accident that Lee Memorial happens to employ some or all of the child’s treating physicians. Here, informal contacts by plaintiffs’ counsel with the child’s treating physicians do not pose a threat that plaintiffs’ counsel will overreach, interfere with Lee Memorial’s relationship with its attorneys, or result in the uncounseled disclosure of information relating to the representation of Lee Memorial by its attorneys.

For these reasons, we conclude that the circuit court’s order under review does not depart from the essential requirements of the law. The circuit court correctly saw that the interest requiring protection here is the Smiths’ right to communicate with their child’s doctors through their duly authorized representatives, not the protection of a client-lawyer relationship. Accordingly, we deny the petition.

Petition denied.

MORRIS and BLACK, JJ, Concur.

      . The Smiths do not appear to dispute Lee Memorial’s claim that the pediatric neurologist and several other of the child's treating physicians are Lee Memorial employees.

      . Along the same lines, an ethics opinion interpreting the comparable (ABA) Rule 4.2, Model Rules of Professional Conduct, states: “When a corporation or other organization is known to be represented with respect to a particular matter, the bar applies only to communications with those employees who have managerial responsibility, those whose act or omission may be imputed to the organization, and those whose statements may constitute admissions by the organization with respect to the matter in question.” ABA Comm, on Ethics & Prof’l Responsibility, Formal Op. 95-396 at 1 (1995).

      . For information on the acquisition of physician practices by hospitals and the economic factors driving this trend, see generally, Randy Bauman, Why Hospitals Are Buying Physician Practices ... Again, Delta Health Care, http://www.deltahealthcare.com/pdf/Why-Hospitals-Buy.pdf (last visited Nov. 29, 2010); Pamela Lewis Dolan, BMR courtship: Hospitals wooing doctors to stay afloat, amed-news.com (Aug. 23, 2010), http://www.ama-assn.org/amednews/2010/08/23/bica0823.htm; Steven A. Eisenberg, The Boomerang Effect: Hospital Employment of Physicians Coming Back Around, Physicians News Digest Online Edition (Feb. 4, 2009), http://www.physicians news.com/2009/02/04/the-boomerang-effect-hospitalemployment-of-physicians-coming-back-around; Peter A. Pavarini, Why Hospitals are Employing Physicians (Again), Stout Risius Ross (www.srr.com), http://www.szd. com/media/news/media. 1487.pdf (last visited Nov. 29, 2010).

      . For a discussion of the purposes of the rule, see generally, Geoffrey C. Hazard, Jr. & Dana Remus Irwin, Toward a Revised 4.2 No-Contact Rule, 60 Hastings L.J. 797, 801-06 (March 2009) (discussing (ABA) Model Rules of Prof’l Conduct R. 4.2 (2008)).


text:
    Santiago REYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3714.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Santiago Reyes appeals his life sentence for sexual battery on a child less than twelve years of age. On appeal he argues that the trial court erred in denying his request to excuse a potential juror for cause. We agree and reverse and remand for a new trial.

We review the trial court’s ruling on a cause challenge for an abuse of discretion. Darr v. State, 817 So.2d 1093, 1093 (Fla. 2d DCA 2002) (citing Singleton v. State, 783 So.2d 970, 976 (Fla.2001)); see also Peters v. State, 874 So.2d 677, 679 (Fla. 4th DCA 2004) (“While the decision to accept or dismiss a putative juror is considered an exercise in discretion, we view the seating of a juror as to whom there is a reasonable doubt concerning impartiality an abuse of discretion and thus ‘manifest error.’ ”).

Reyes was charged with sexual battery on a child less than twelve years of age based on an alleged incident that took place in May 2008. At trial, the venire consisted of forty individuals — six of whom were sworn as jurors. During voir dire, a potential juror stated that she worked for four-and-a-half years in a youth shelter where she was involved with children who were victims of sex abuse. When asked by the State, “Would your involvement with them affect your ability to focus on the facts we present to you?” the following exchange took place:

[Juror]: Very possible. My mother— there were things in my family with my mother and her sister. There is something on my boyfriend’s side with his grandson.
[State]: That are possible victims of sex abuse?
[Juror]: Yes, ma'am.
[State]: You don’t think you could put those aside?
[Juror]: I have seen, when it comes to my mother and sister — or her sister, I mean — what they have gone through in their lives. It would be very difficult actually.

(Emphasis added.) The juror also indicated that she wanted to keep a matter private regarding legal proceedings. Upon completion of the voir dire examination, the trial court addressed challenges to the panel by going down a list of each venire member. By the time the trial court reached the juror at issue, who was the thirty-ninth individual listed, both the State and Reyes had exhausted their ten peremptory challenges. Thirteen for-cause challenges had been granted, leaving seven potential jurors to serve on the six-member panel. Upon reaching the juror’s name on the list, the trial court called the juror to the courtroom to discuss the matter she wished to speak about in private:

[Court]: There was an indication you felt you needed to talk about something. [Juror]: Yes. When it comes to my son, there was a drug case in 2007. The way I believe, if you do the crime, you do the time. He did do his time. I felt that needed to come out. I was involved in that. I had to get his attorney.
[Court]: Does counsel want to ask her any questions?
[State]: Would your involvement with your son affect your ability to be fair and impartial in this case?
[Juror]: No. He moved out of the state to get away from everything. Like I said, he did wrong. That’s his problem. He did it, not me. He knew right from wrong.
[Court]: Anything?
[Defense counsel]: To reiterate, I know this is regarding your son. You can be fair. But with the actual charges and respect to your family history, can you be fair based on that charge?
[Juror]: I don’t know. What happened with my mother and her sister happened years ago. That was pushed under the mg because nobody wanted to believe it happened to them. That was with them. Now, recently, back in July, my boyfriend’s grandson, there was a family member on his wife’s side who was accused of asking my boyfriend’s grandson to do something with him. I don’t know if it is true or isn’t.
[Defense counsel]: You would have difficulty ? You are not for sure ?
[Juror]: Uh-huh.

(Emphasis added.) Once the juror was excused, defense counsel asked for a cause challenge “regarding whether [the juror] is not sure if she is fair and impartial regarding the sex cases and what has gone on in her personal life.” The State objected to the challenge, and the trial court sustained the objection, stating, “I think my opinion is that she can be a fair and impartial juror.” Defense counsel then stated, “Your Honor, since the Court did deny the cause challenge, we ask permission, although we are out of strikes, we would ask for a strike on [the juror] because we would have used it, had we had one.” The trial court denied the request for an additional peremptory strike. A strike for the alternate seventh juror was granted, and the trial court noted, “I will not get an alternate. I will go ahead and take a chance.”

We first note that Reyes’ counsel properly preserved the issue for appeal by “requesting the additional peremptory challenge, objecting to the court’s denial, and identifying the juror he was required to accept as objectionable.” Joseph v. State, 983 So.2d 781, 783 (Fla. 4th DCA 2008) (citing Shannon v. State, 770 So.2d 714 (Fla. 4th DCA 2000)); see also Adkins v. State, 736 So.2d 719, 720-21 (Fla. 2d DCA 1999). We conclude based on the nature of the crime at issue and the responses the juror provided during the information-gathering process that the trial court erred in denying Reyes’ cause challenge of the juror. A juror should be excused for cause where there is reasonable doubt concerning the juror’s ability to render an impartial verdict. Darr, 817 So.2d at 1093 (citing Hill v. State, 477 So.2d 553, 555 (Fla.1985)). “In close cases, any doubt as to a juror’s competency should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality.” Thomas v. State, 958 So.2d 1047, 1050 (Fla. 2d DCA 2007).

The circumstances before this court did not create a close case because there was ample information provided by the juror to create reasonable doubt as to her impartiality. After describing her involvement with child victims of sex abuse, the juror stated it was “very possible” her experience would affect her ability to focus on the facts of the present case. She described impartiality as “very difficult” in light of the sex abuse issues involving her family members. And even though she confirmed that her son’s legal issues would not affect her ability to be fair and impartial, she stated a second time that she would have difficulty with impartiality based on the sex abuse issues in her family. In fact, she described the sex abuse issues regarding her mother and her mother’s sister as “pushed under the rug because nobody wanted to believe it happened to them.” Based on this information, we find it would be very difficult for anyone with the described background to make a fair and impartial credibility determination based on facts involving accusations of sexual misconduct towards a child. And because the juror’s responses during voir dire “clearly did not express ‘a final, neutral, and detached determination to sit as a fair and impartial juror,’ ” creating reasonable doubt as to her impartiality, we find the trial court reversibly erred in denying Reyes’ cause challenge and subsequent motion for an additional peremptory challenge. Taylor v. State, 796 So.2d 570, 572 (Fla. 2d DCA 2001) (quoting Price v. State, 538 So.2d 486, 489 (Fla. 3d DCA 1989)).

Accordingly, we reverse and remand for a new trial based upon the trial court’s denial of Reyes’ cause challenge of this specific juror.

Reversed and remanded.

CASANUEVA, C.J., and VILLANTI, J., Concur.


text:
    Katharine RANDALL, Appellant, v. Steven D. RANDALL, Appellee.
    No. 2D08-4349.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.

      Donald A. Foster of The Foster Law Group, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   ALTENBERND, Judge.

Katharine Randall, the Former Wife, appeals from a final judgment of dissolution of her marriage to the Former Husband, Steven Randall. We agree with the Former Wife that the trial court erred in requiring her to return her engagement ring to the Former Husband after he had listed the ring as her nonmarital property. Accordingly, we reverse that portion of the judgment requiring the Former Wife to return the engagement ring to the Former Husband, and we remand for further proceedings consistent with our opinion.

This dissolution proceeding was filed in 2006 and was pending for two years before the trial court entered the final judgment. The parties were able to resolve most of their differences prior to trial. As a result, no party received alimony. By the time the trial court entered the final judgment, the parties had no joint assets and had placed liabilities into their individual names except for some liabilities relating to children’s expenses. Thus, the trial court was not required to perform any significant equitable distribution. Section 6 of the Final Judgment of Dissolution, entitled “Personal Property,” provides:

The parties have divided all personal property satisfactorily, with the exception of the [Former Wife’s] diamond engagement ring which was the Father’s family heirloom. Wife shall return this ring to the Husband, who shall not be entitled to sell the ring, but may keep it to give to his children as he sees fit.

Regarding this ring, the Former Husband’s financial affidavit lists an item labeled as “Grandmother[’]s Diamond Ring” as the Wife’s nonmarital property. The affidavit places the value on that ring at $6000.

The Former Wife argues that the engagement ring was given to her “in consideration of her agreement to marry” and that she received the ring before the marriage as part of the agreement she fulfilled when she married the Former Husband. She also maintains that the ring was her nonmarital property.

Section 61.075(1), Florida Statutes (2007), provides that “[i]n a proceeding for dissolution of marriage, ... the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities.” The general rule is that an engagement ring is nonmarital property. See, e.g., Malone v. Malone, 929 So.2d 541, 541 (Fla. 1st DCA 2006); Rosen v. Rosen, 738 So.2d 474, 475 (Fla. 4th DCA 1999); Melvik v. Melvik, 669 So.2d 328, 330 (Fla. 4th DCA 1996). In Melvik, the court explained that “[i]t was error for the trial court to consider the wife’s premarital property, such as her engagement and wedding rings which were found to be gifts to the wife, in the equitable distribution scheme.” 669 So.2d at 330. The rationale underlying these cases appears to be that an engagement ring is a gift made upon the implied condition that a marriage ensue. See Gill v. Shively, 320 So.2d 415, 416 (Fla. 4th DCA 1975). This reasoning comes from actions in replevin brought by rejected husbands-to-be who seek the return of their engagement gifts. See id.

The trial court in this case did not actually treat the ring as part of an equitable distribution scheme. Instead, it treated the ring as an “heirloom,” which the parties should not sell, but rather should give to the children as the Former Husband saw fit. Despite the arguable Solo-monic character of this decision, there is nothing in Florida law to authorize special treatment of “heirloom” property. Especially in light of the general rule that an engagement ring, as a gift, is nonmarital property, we conclude the trial court erred in ordering that the ring be returned to the Former Husband over the objection of the Former Wife. We reverse that portion of the order and remand for further proceedings consistent with our opinion.

KELLY and MORRIS, JJ., Concur.

      . The two children of this marriage are both females, and it is unclear what, if any, plan the Husband had for the distribution of this ring.


text:
    Thomas A. LEE, Appellant/Cross-Appellee, v. Karen L. LEE, Appellee/Cross-Appellant.
    Nos. 2D09-269, 2D09-5843.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.
    Cynthia L. Greene of Law Office of Greene Smith & Associates, P.A., Miami, for Appellant/Cross-Appellee.

      Karen L. Lee, pro se.
   CRENSHAW, Judge.

Thomas A. Lee (the Former Husband) and Karen L. Lee (the Former Wife) appeal a final judgment of dissolution of marriage. The Former Husband also appeals a supplemental judgment awarding attorney’s fees and costs to the Former Wife. Because of several deficiencies in the final judgment, we affirm the dissolution of marriage but reverse and remand the remainder of the judgments for further findings and clarification.

Section 61.075, Florida Statutes (2008), sets forth the requirements for equitable distribution of marital assets and liabilities. The trial court is first required to “set apart to each spouse that spouse’s nonmarital assets and liabilities.” § 61.075(1), Fla. Stat. Then, when distributing the marital assets and liabilities between the parties, the court “must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.” Id. Should the trial court determine that an unequal distribution is warranted, the trial court must articulate the specific findings of fact that justify the unequal distribution. See Franklin v. Franklin, 988 So.2d 125, 126 (Fla. 2d DCA 2008) (“An appellate court must reverse an unequal distribution if the trial court fails to make a specific finding of fact that justifies the unequal distribution.”); Pavese v. Pavese, 932 So.2d 1269, 1270 (Fla. 2d DCA 2006) (concluding that the failure to make specific written findings of fact that “identify, classify, value, and distribute the parties’ assets and liabilities” in fashioning an equitable distribution precludes meaningful appellate review); Feger v. Feger, 850 So.2d 611, 616 (Fla. 2d DCA 2003) (concluding “that the major deficiency in the final judgment is the court’s failure to articulate a specific factual and statutory basis for the uneven equitable distribution award, rendering appellate review impossible”).

Here the final judgment fails to specifically delineate nonmarital and marital property. Instead, the equitable distribution section of the judgment lumps together nonmarital and marital property, and not all assets are assigned a value. Notwithstanding this deficiency, the trial court acknowledges an unequal distribution scheme:

[The distribution] will put the Wife in the exact same financial situation she was in prior to this short term marriage and although the Husband will be in a much worse financial position than he was prior to the marriage, the court believes this is equitable under the circumstances.

And despite the trial court’s conclusion that the distribution is “equitable under the circumstances,” the trial court fails to indicate the circumstances justifying an uneven distribution. On remand the trial court shall make the appropriate findings consistent with section 61.075 and articulate a basis for the unequal distribution of marital assets.

We also find an inherent conflict between the trial court’s conclusion that the Former Husband “did not intend to make a gift to the Wife of the Deal Road property, the pre-marital CD’s, or the Avila Circle condominium,” and the trial court’s treatment of these assets as marital property. The trial court concludes “that the Husband’s actions transformed the premarital assets into marital assets,” but the trial court fails to explain the facts upon which it relies in reaching this conclusion. On remand the trial court shall clarify these findings.

We also reverse and remand the award of attorney’s fees to the Former Wife. After clarifying the equitable distribution scheme, the trial court will need to determine the parties’ relative need and ability to pay in accordance with section 61.16.

Because the cumulative deficiencies of the final judgment of dissolution preclude this court from giving the judgment meaningful review, we are compelled to affirm the dissolution of marriage but reverse and remand the remainder of the judgments for further findings and clarification in accordance with the statutes and case law cited herein.

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

NORTHCUTT and LaROSE, JJ., Concur.


text:
    J.E.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3742.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Fifteen-year-old J.E.R. was hiding in a friend’s bedroom when he should have been in school. The friend’s father found him upon returning from taking his son to school. The father had left the home vacant and unlocked. The father removed J.E.R. from the home and returned him to the area near the school that J.E.R. told him he attended. The father then discovered that several valuable items were missing from the home. One of these items was found in J.E.R.’s possession later that day.

Based on these events, the State filed a petition alleging delinquency against J.E.R. for burglary of a dwelling and grand theft. The court acquitted him of the burglary charge, adjudicated him delinquent for the grand theft, adjudicated him, and imposed substantial restitution for the items that were never recovered. He appeals, raising two issues: first, that there was insufficient evidence to support the grand theft and, second, that he was denied allowable credit for time served in secure detention.

We find no merit in his first issue and affirm the adjudication of delinquency without further discussion. The State properly concedes error on the second issue. We therefore remand for correction of the amount of time served to reflect credit for time served in secure detention. See A.M. v. State, 958 So.2d 461 (Fla. 2d DCA 2007).

Affirmed but remanded for correction of the amount of time served. Appellant need not be present for this correction.

CASANUEVA, C.J., and KELLY and BLACK, JJ., Concur.

      . The court committed J.E.R. to the Department of Juvenile Justice for the third-degree felony of grand theft until his twenty-first birthday or the maximum allowed by law. J.E.R. notes, and we agree, that this language is ambiguous given his young age at disposition. See L.W.G. v. State, 785 So.2d 696, 696 (Fla. 4th DCA 2001) ("[L]anguage committing a juvenile for an indeterminate period of time no longer than a specific birthday or the maximum term of imprisonment is error because such language could allow the sentence to be construed as running longer than the statutory maximum provided for the particular offense.”). We trust that on remand any correction the court makes to the disposition order will take this issue into account also.


author: MORRIS, Judge.

text:
    Rhonda R. WEBBER, Appellant, v. William A. WEBBER, Appellee.
    No. 2D09-4127.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.
    Rehearing Denied March 25, 2011.

      Mark A. Neumaier, Tampa, for Appellant.
    Christopher E. Yeazell of The Law Offices of Yeazell and Sweet, Clearwater, for Appellee.
   MORRIS, Judge.

Rhonda D. Webber, the former wife, appeals a postdissolution order regarding modification of child custody, child support, and alimony. We affirm all but one of the issues without comment. However, the trial court erred by imposing a retroactive child support obligation on the former wife dating back to January 2007, and we must therefore reverse on that issue.

The former husband, William A. Webber, did not file his petition for modification of child support until May 25, 2007. Although it is undisputed that the parties’ then-minor daughter moved in with the former husband in January 2007, it is the date of the filing of the former husband’s petition that determines when the retroactive child support obligation began. Both the relevant statute and case law provide that a retroactive child support obligation may not be imposed prior to the filing of a petition seeking a modification. See § 61.14(l)(a), Fla. Stat. (2006) (providing that court may modify support order “retroactively to the date of the filing of the action or supplemental action for modification as equity requires”); Musser v. Watkins, 752 So.2d 141, 143 (Fla. 2d DCA 2000) (“Absent the filing of a petition for modification, [the amount of child support] remain[s] fixed by [the] judgment [of dissolution] and cannot be modified prior to the time a proper petition for modification was filed.”); Torres v. Torres, 739 So.2d 599, 600 (Fla. 2d DCA 1997) (“It is settled that a trial court cannot modify a child support obligation absent a pleading or motion requesting such modification.”).

Accordingly, the trial court abused its discretion by imposing a retroactive child support obligation on the former wife dating back to January 2007. We reverse that portion of the trial court’s order and remand with instructions to the trial court to enter an amended order reflecting that the former wife’s retroactive child support obligation began on May 25, 2007, the date of the filing of the former husband’s petition for modification.

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

ALTENBERND and KELLY, JJ., Concur.