author: BENTON, C.J. SWANSON, J.,

text:
    Pamela Jo BONDI, in her capacity as the Attorney General of the State of Florida, Appellant, v. Kenneth S. TUCKER, in his capacity as the Secretary of the Florida Department of Corrections, James Baiardi, John McKenna, Shanea Maycock, and Florida Police Benevolent Association, Inc., Appellees.
    No. 1D1I-5935.
    District Court of Appeal of Florida, First District.
    July 24, 2012.

      Pamela Jo Bondi, Attorney General, and Jonathan A. Glogau, Chief, Complex Litigation, Tallahassee, for Appellant.
    Peter D. Webster and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, for Amicus Curiae the Florida Chamber of Commerce in support of Appellant.
    M. Stephen Turner, Kelly Overstreet Johnson, and David K. Miller of Broad and Cassel, Tallahassee; Gene L. “Hal” Johnson, General Counsel, and Stephanie Dob-son Webster, Assistant General Counsel of the Florida Police Benevolent Association, Inc., Tallahassee, for Appellees James Baiardi, John McKenna, Shanea Maycock, and Florida Police Benevolent Association, Inc.
   BENTON, C.J.

As Attorney General of the State of Florida, Pamela Jo Bondi seeks review of a final declaratory and injunctive judgment entered in Circuit Court. The Secretary of the Department of Corrections, against whom the final declaratory and injunctive judgment was actually entered, has not appealed. Like any other non-party in the trial court, the Attorney General lacks standing to initiate an appeal on her own. We therefore dismiss the appeal.

In the circuit court proceedings that culminated in the final declaratory and in-junctive judgment, the Attorney General did not participate as a party in her own right: Her office’s only role was as counsel for the Department of Corrections (DOC). The judgment she now seeks to overturn declared unconstitutional proviso language in last year’s General Appropriations Act, ch. 2011-69, § 4, at 1215-17, Laws of Florida, pertaining to the 2011-2012 budget for DOC, and enjoined DOC’s implementing the proviso language.

A notice of appeal timely filed by a party is necessary in order to perfect an appeal from a final judgment. “The notice of appeal shall ... contain ... the name and designation of at least 1 party on each side.” Fla. R. App. P. 9.110(d) (emphasis supplied). In the present case, on October 31, 2011, the last day allowed for an appeal, see Fla. R. App. P. 9.110(b) (requiring notice to be filed within 30 days of rendition), the Attorney General filed a notice of appeal of the trial court’s order, not on behalf of any party to the proceedings below, but “in her capacity as the Attorney General of the State of Florida and pursuant to her [putative] authority under § 16.01(4), Fla. Stat.”

A party who suffers an adverse judgment in circuit court has the right to appeal, but non-parties whose rights have not been adjudicated have no right of appeal. See Portfolio Invs. Corp. v. Deutsche Bank Nat’l Trust Co., 81 So.3d 534, 536 (Fla. 3d DCA 2012) (“Generally, a non-party in the lower tribunal is a ‘stranger to the record’ and, therefore, lacks standing to appeal an order entered by the lower tribunal.”); Morrell v. Nat’l Health Investors, Inc., 876 So.2d 580, 580-81 (Fla. 1st DCA 2004) (“This appeal is hereby dismissed. Appellate review is limited to the parties in the lower tribunal. As David E. Morrell was not a party to the proceedings below, he cannot participate in appellate review.” (citation omitted)); Stas v. Posada, 760 So.2d 954, 955 (Fla. 3d DCA 1999) (“Appellant Juan Mueller was not a party below and made no effort to intervene in the action. Consequently, he ... is precluded from seeking appellate review.”).

Even class members who are already parties and bound by a judgment must intervene as named parties in the trial court before they can appeal. See Ramos v. Philip Morris Cos., Inc., 714 So.2d 1146, 1147 (Fla. 3d DCA 1998) (“We agree with the Fourth District that ‘non-named class members must intervene formally in the class action to gain standing to appeal.’ Concerned Class Members[ v. Sailfish Point, Inc., 704 So.2d 200, 201 (Fla. 4th DCA 1998) ].”). With rare exception, failure to participate as a party in the lower tribunal precludes the ability to invoke appellate proceedings. See Barnett v. Barnett, 705 So.2d 63, 64 (Fla. 4th DCA 1997) (“The general rule is that a non-party is a ‘stranger to the record’ who cannot ‘transfer jurisdiction to the appellate court.’ ” (quoting Forcum v. Symmes, 101 Fla. 1266, 133 So. 88 (1931))). But see Smith v. Chepolis, 896 So.2d 934, 935-36 (Fla. 1st DCA 2005) (finding nonparty deemed responsible for workers’ compensation benefits could appeal final order entered by judge of compensation claims so ruling). Like other rules of finality, rules restricting who can appeal foster stability and good order. “The doctrine of decisional finality provides that there must be a ‘terminal point in every proceeding both administrative and judicial, at which the parties and the public may rely on a decision as being final and dispositive of the rights and issues involved therein.’ ” Fla. Power Corp. v. Garcia, 780 So.2d 34, 44 (Fla.2001) (quoting Austin Tupler Trucking, Inc. v. Hawkins, 377 So.2d 679, 681 (Fla.1979)).

The Attorney General is in many ways no ordinary litigant. She has important and far-ranging responsibilities, including the “power to institute litigation on [her or] his own initiative.” State ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 271 (5th Cir.1976). Section 16.01(4), Florida Statutes (2011), provides that the Attorney General “[s]hall appear in and attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested, in the Supreme Court and district courts of appeal of this state.” Under this statute, as at common law, the Attorney General has broad authority to litigate matters in the public interest:

[I]t is the inescapable historic duty of the Attorney General, as the chief state legal officer, to institute, defend or intervene in, any litigation or quasi-judicial administrative proceeding which he determines in his sound official discretion involves a legal matter of compelling public interest....
The courts of this state have long recognized this advocacy authority, and litigation duty of the Attorney General. It derives from the common law and in only rare instances has the Legislature otherwise provided. See State ex rel. Attorney-General v. Gleason, 12 Fla. 190; State ex rel. Moodie v. Bryan, 1905, 50 Fla. 293, 39 So. 929; State ex rel. Landis v. S.H. Kress & Co., 1934, 115 Fla. 189, 155 So. 823; State ex rel. Davis v. Love, 1930, 99 Fla. 333, 126 So. 374; State ex rel. Crim v. Juvenal, 1935, 118 Fla. 487,159 So. 663; Barr v. Watts, Fla., 70 So.2d 347; Ervin v. Collins, Fla.1956, 85 So.2d 852, and State ex rel. Ervin v. Jacksonville Expressway Authority, Fla.1962,139 So.2d 135.

State ex rel. Shevin v. Yarborough, 257 So.2d 891, 894-95 (Fla.1972) (Ervin, J., specially concurring). We recognize that the “office of the Attorney-General is a public trust .... [and that s]he has been endowed with a large discretion ... in ... matters of public concern,” State v. Gleason, 12 Fla. 190 (Fla.1868), and acknowledge and affirm the Attorney General’s “discretion to litigate, or intervene in, legal matters deemed by him [or her] to involve the public interest ... and [that] his [or her] standing ... can not be challenged or adjudicated.” Id. at 895 (Ervin, J., specially concurring). See also Thompson v. Wainwright, 714 F.2d 1495, 1500-01 (11th Cir.1983). But the Attorney General did not exercise her “discretion to litigate” in the circuit court proceedings, and never sought intervention here or below.

Proceedings began when James Baiardi, John McKenna, Shanea Maycock, and the Florida Police Benevolent Association, Inc. filed their complaint against the DOC Secretary in circuit court for declaratory judgment and injunctive relief, seeking to invalidate proviso language understood as intended to require DOC to issue a request for proposals to “privatize” twenty-nine correctional facilities in DOC’s Region IV. Proceedings in circuit court con-eluded on September 30, 2011, when the trial court entered judgment ruling (on cross motions for summary judgment) that the privatization directive in the Appropriations Act violated Article III, sections 6 and 12, of the Florida Constitution, and enjoining DOC from taking any further steps to implement the proviso. At no time did the Attorney General file a motion to intervene in the trial court proceedings.

When the Attorney General does appear in court as a party litigant, she is subject to the same rules of judicial procedure which other litigants must observe. Whether as litigant or as counsel, the Attorney General must comply with court rules and court orders. The separation of powers between judicial and executive branches requires no less. Our supreme court recognized as much in Watson v. Claughton, 160 Fla. 217, 34 So.2d 243, 244-45 (1948), where the Attorney General filed an “Answer and Motion to Dismiss” and “Reply to and Motion to Dismiss Counterclaim,” both of which the trial court struck on the narrow ground that it had previously denied the Attorney General’s petition to intervene in the action. Because review of the prior order had not been sought, the prior order denying intervention had become final.

Seeking review of the later interlocutory order, the Attorney General filed a petition for writ of certiorari, arguing that he was entitled, despite the unchallenged order denying his intervention, to participate as a party, citing section 87.10, Florida Statutes (1941), which provided that “[i]n any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general of the State of Florida ... shall also be served with a copy of the proceedings and be entitled to be heard.” Id. at 246. Our supreme court ruled that the Attorney General was bound by the circuit court’s earlier order denying intervention, saying of the Attorney General: “The statute provides that he should be ‘heard,’ which means that he should be heard according to the merits of what he presented at the hearing and that he should be amenable to the Court’s rulings, as are other petitioners.” Id.

Even a party able to intervene as a matter of right must obtain a court order allowing intervention. See Sullivan v. Sapp, 866 So.2d 28, 33 (Fla.2004) (“Unquestionably, any time a party seeks to intervene in a cause of action, a two-step process is implicated. First, the court must address whether intervention is proper. Only after the court has determined that intervention is proper does it become necessary to move to the second step, which involves consideration of the merits of the intervenor’s claim.”). An order allowing intervention, albeit of the Attorney General, is no mere formality. A court has discretion in imposing any conditions on the intervenor necessary to preserve the original parties’ rights, inasmuch as “the rights of an intervenor are subordinate to the rights of the parties.” Envtl. Confederation of S.W. Fla., Inc. v. IMC Phosphates, Inc., 857 So.2d 207, 210 (Fla. 1st DCA 2003).

Our supreme court has identified as an exception to what it called, in Dickinson v. Segal, 219 So.2d 435, 436 (Fla. 1969), “the general rule — universally—... that intervention may not be allowed after final judgment”: On appropriate conditions, a court may allow the attorney general to intervene after judgment has been entered, in order to argue on appeal as an intervenor for the constitutionality of a statute “where the trial court finds a statute to be unconstitutional.” State ex rel. Shevin v. Kerwin, 279 So.2d 836, 837-38 (Fla.1973) (“The Attorney General was granted leave to intervene in the cause by the trial court solely for purposes of appeal after the trial judge had declared the last sentence of Fla. Stat. § 553.38(3), F.S.A., to be unconstitutional.”). But in the present case, as we have said, the Attorney General never sought to intervene, either here or in the trial court. There is not, of course, any regularly invoked appellate proceeding into which she can intervene, since she alone sought to initiate appellate proceedings.

The Attorney General has not asked us to treat her notice of appeal as a petition for writ of certiorari. Nor could we do so on this record. Certiorari is an extraordinary remedy that is not available to a litigant who, like the Attorney General in the present case, had an adequate remedy at law. See In re D.R.C., 67 So.3d 251, 253 (Fla. 2d DCA 2010) (“[Rjelief by means of certiorari is not available when ... the petitioner has another remedy.”). Although we have general “authority to treat a notice of appeal as a petition for writ of common law certiorari, in keeping with Florida Rule of Appellate Procedure 9.040(c) (‘If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ....’), see Pridgen v. Board of County Comm’rs of Orange County, 389 So.2d 259 (Fla. 5th DCA 1980), review denied, 397 So.2d 777 (Fla.1981), the present case does not warrant the grant of a petition for writ of common law certiorari, either.” Naghtin v. Jones, 680 So.2d 573, 576 (Fla. 1st DCA 1996). Apart from the absence of another, adequate remedy, certiorari relief also requires the petitioner to demonstrate a departure from the essential requirements of law in the lower tribunal causing “material injury to the petitioner.” Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). We need not and do not reach, much less decide, either of these additional questions, but material injury is plainly highly unlikely if the case is now moot because the 2011-12 fiscal year has run.

Not having moved to intervene as a party below, the Attorney General lacked authority to initiate an appeal. We are therefore without jurisdiction to review the trial court’s judgment, and the appeal must be dismissed.

Dismissed.

CLARK, J., concurs; SWANSON, J„ specially concurs.

SWANSON, J.,

specially concurring.

I concur with the decision by the majority but wish to emphasize this case has been resolved on an issue of procedure, not power. This case does not serve as precedent to limit or curtail the power of the Attorney General. It is a well-settled principle of common law — a principle embodied by- statutes — that the Attorney General has broad authority to represent the people of Florida. Nonetheless, the Attorney General has to follow the procedural rules; something she failed to do here.

The dismissal of this appeal prevents us from reaching the merits of this case. Accordingly, this case also does not serve as precedent to define legislative power.

      . Also on October 31, 2011, the Attorney General filed a notice of appearance in the trial court. This notice of appearance is not in the record and cannot be located in the trial court. But the trial court docket printout describes the notice of appearance as filed "on behalf of Edwin G. Buss as Secretary of FL Dept of Correction (Defendant).”

      . In the ensuing legislative session, an attempt to "privatize” prisons by general law, see Fla. CS for SB 2038 (2012), failed to pass the Senate. See Fla. S. Jour. 517 (Reg.Sess. Feb. 14, 2012). The existing substantive law on the subject allows, but does not require, "privatization.” See § 944.105(1), Fla. Stat. (2011).

      . Where a trial court denies intervention, an appeal lies. See Litvak v. Scylla Props., LLC, 946 So.2d 1165, 1172 (Fla. 1st DCA 2006) (" ‘An order denying a motion to intervene is final as to and appealable by the movant.' " (quoting Y.H. v. F.L.H., 784 So.2d 565, 567-68 (Fla. 1st DCA 2001))). If intervention as a party in the trial court proceedings has been disallowed in error, participation as a party can be ordered. See, e.g., Omni Mat’l Bank v. Ga. Banking Co., 951 So.2d 1006, 1007 (Fla. 3d DCA 2007) (reversing default judgment which was “entered subsequent to the trial court's denial of Omni's rightful motion to intervene”).

      . By court rule, all public bodies and public officers are afforded special treatment as regards stays pending review. See Fla. R.App. P. 9.310(b)(2). But this is largely because requiring governmental entities to post appeals bonds is not routinely necessary or appropriate, and does not in any event threaten the separation of powers. In authorizing "the lower tribunal or the court ... [to] impose any lawful conditions, or vacate the stay,” id., moreover, Rule 9.310(b)(2) treats the government on a par with private litigants.

      .
      The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.
      Art. II, § 3, Fla. Const.

      . The supreme court explained that the Attorney General had been "heard” on his petition for intervention, and that, because he did not seek review of the order denying intervention, it had become final. Watson v. Claughton, 160 Fla. 217, 34 So.2d 243, 246 (1948).

      . At oral argument, we were informed that the Attorney General would have moved to intervene post-judgment in the present case, if an Assistant Attorney General had not decided that he had run out of time to obtain a ruling by the trial court allowing intervention.

      . Intervention as a party would have supplied a fully adequate remedy. The Attorney General could have intervened in the proceedings below, participated as an intervenor (or even have intervened post-judgment), and then as a party in the trial court taken an appeal. Her right to intervene as a party below was clear. "It cannot be doubted that the constitutional integrity of the laws of Florida is a matter in which the State has great interest, or that the State is a proper, but not necessary, party to any determination of the constitutionality of any state statute.... [WJhere the trial court finds a statute to be unconstitutional, it is proper that the Attorney General appear on appeal to defend the statute.” State ex rel. Shevin v. Kerwin, 279 So.2d 836, 837-38 (Fla. 1973). She had an adequate remedy at law.
      While we granted the Attorney General’s petition for writ of certiorari in State ex rel. Boyles v. Florida Parole & Probation Commission, 436 So.2d 207 (Fla. 1st DCA 1983), even though he had not been a party to proceedings before the Parole Commission, we said there, too, that if the Attorney General could have appealed the Commission’s order, cer-tiorari would have been unavailable as a remedy. Id. at 209-10. We reasoned that one seeking review of agency action must have been a party to the administrative proceedings under the Administrative Procedure Act, and that, because the Attorney General had not been, he did not have standing to appeal the order under section 120.68, Florida Statutes. Id. at 210. Section 120.68 has no application in the present case, and we are aware of no authority for post-final-order intervention in Parole Commission cases. See generally Ahlers v. Wilson, 867 So.2d 524, 527 n. 2 (Fla. 1st DCA 2004) (citing lack of administrative procedures analogous to Florida Rule of Civil Procedure 1.540 as basis for granting writ of certiorari in workers’ compensation case). It is also clear in the present case that the Attorney General was fully cognizant of the proceedings in circuit court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Y.M., Father, Appellant, v. HOME AT LAST ADOPTION AGENCY, et al., Appellees.
    No. 5D12-264.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2012.

      Ryan Thomas Truskoski, Special Assistant, Jeffrey Deen and Lori D. Loftis, Chief Assistant, Office of Criminal Conflict and Civil Regional Counsel, Casselberry, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

In this proceeding to terminate parental rights pending adoption pursuant to chapter 63, Florida Statutes (2010), Appellant, V.M., challenges the authority of the trial court to enter an order adjudicating his infant daughter dependent after concluding that the evidence did not support terminating his parental rights. We agree with Appellant and conclude that the trial court should have dismissed the petition. Accordingly, we affirm in part and reverse in part.

On April 7, 2010, Appellant’s wife gave birth to their daughter while Appellant was in jail. Three days later, Appellant’s wife voluntarily executed a consent to adoption pursuant to section 63.082, Florida Statutes (2010), effectively giving custody of the child to Home at Last Adoption Agency (“the Adoption Agency”), a Florida licensed child-placing agency. Shortly thereafter, the Adoption Agency placed the child with an out-of-state family and filed a petition for termination of parental rights pending adoption, alleging abandonment as the basis for terminating Appellant’s parental rights. After the court appointed counsel to represent Appellant due to a finding of indigency, he denied “each and every allegation” of the petition and specifically denied receiving the required notice of intended adoption plan.

The court held a trial on the termination petition on June 13, 2011. At the conclusion of the trial, the court found that Appellant’s wife had given the child to the Adoption Agency without telling Appellant or getting Appellant’s consent and then lied to the Adoption Agency about it. The court, therefore, found that Appellant had not abandoned the child and denied the Adoption Agency’s request to terminate his parental rights, stating:

There is nothing that’s been presented to me that would lead me to determine that this man has abandoned the child, nor has there been some egregious activity that would cause me to terminate his parental rights. However, it is very appropriate for a dependency.
I would order at this point — again, not hearing what some witness in the hallway is going to say — or at this point, based on the evidence that’s been presented so far, that the father would be entitled to a case plan that would include psychological evaluation, Batterers Intervention, a parenting class, obviously follow the recommendations of the psychological evaluation, pay child support, have regular and routine visitation.
I cannot find good grounds to terminate his parental rights. It doesn’t .meet the criteria. And I think the biggest problem is, the mother lied to you. But I cannot find abandonment.
And the other grounds that you have listed and elicited here at testimony today, do not rise to the level of termination. They do rise to the level of dependency though.

The court initially ordered that the child be returned to Florida and that Appellant receive weekly visitation. However, after discussions regarding with whom the child would be placed in Florida, the court stated that the child could remain with the prospective adoptive parents in Massachusetts but that they would have to bring the child to Florida for visitation with Appellant every other Saturday. The court expressed its desire not to place the child in foster care or involve the Department of Children and Families.

The court did not render its order based on the termination trial until December 22, 2011. In its “Order of Adjudication and Findings of Fact Order of Disposition and Case Plan Acceptance,” the court denied the petition to terminate Appellant’s parental rights. We affirm this portion of the order without further discussion. After denying termination, however, the court proceeded to adjudicate the child dependent and purported to make findings of fact pursuant to section 39.507, Florida Statutes. The court ordered the child to remain with her current placement in Massachusetts, provided Appellant with supervised visitation every other Saturday, and ordered Appellant to pay $200 per month in child support and complete a financial affidavit for income deduction. It further ordered Appellant to enter a case plan requiring him to have a psychiatric examination, complete parenting classes, and complete domestic violence/batterer’s intervention courses, all at Appellant’s expense.

As he did below, Appellant argues that the trial court exceeded its authority after finding that there was insufficient evidence to support termination of his parental rights. He contends that after making such a finding, the court had no choice but to dismiss the petition. We agree. The pertinent part of chapter 63 provides:

63.089. Proceeding to terminate parental rights pending adoption; hearing; grounds; dismissal of petition; judgment.—
(5) DISMISSAL OF PETITION. — If the court does not find by clear and convincing evidence that parental rights of a parent should be terminated pending adoption, the court must dismiss the petition and that parent’s parental rights that were the subject of such petition shall remain in full force under the law. The order must include written findings in support of the dismissal, including findings as to the criteria in subsection (4) if rejecting a claim of abandonment. Parental rights may not be terminated based upon a consent that the court finds has been timely withdrawn under s. 63.082 or a consent to adoption or affidavit of nonpaternity that the court finds was obtained by fraud or duress. The court must enter an order based upon written findings providing for the placement of the minor. The court may order scientific testing to determine the paternity of the minor at any time during which the court has jurisdiction over the minor. Further proceedings, if any, regarding the minor must be brought in a separate custody action under chapter 61, a dependency action under chapter 39, or a paternity action under chapter 742.

§ 63.089(5), Fla. Stat. (2010) (emphasis added).

During opening statements at the termination trial, the Adoption Agency asserted that it was before the court on only one issue — abandonment. The court specifically found that there was insufficient evidence to establish that Appellant abandoned his child or that Appellant’s parental rights should be terminated on any other asserted ground. Instead of dismissing the petition after finding no basis for termination, as required by section 63.089(5), the trial court proceeded to create and adopt a case plan, order Appellant to complete several tasks, and order child support and visitation. This was error. Section 63.089(5) is clear and unambiguous. It required the court to dismiss the petition upon finding that Appellant’s parental rights should not be terminated pending adoption. The court had no choice but to dismiss the petition, leaving Appellant’s parental rights intact. The statute is clear that any dependency proceedings would have to be filed separately in a dependency action pursuant to chapter 39. A statute that is clear and unambiguous and conveys a clear and definite meaning should be given its plain and ordinary meaning. Dianderas v. Fla. Birth Related Neurological Injury Comp. Ass’n, 973 So.2d 523, 526 (Fla. 5th DCA 2007). The lower court’s creation of what it called a “private dependency” proceeding was error.

AFFIRMED in part, REVERSED in part.

TORPY, LAWSON and COHEN, JJ., concur.

      . The Florida Adoption Act, chapter 63, Florida Statutes, involves private adoptions. Pursuant to section 63.087(4), a petition to terminate parental rights pending adoption may be initiated by an adoption entity if certain conditions are met.

      . The statute has been amended, effective July 1, 2012; however, the relevant language remains the same in the current statute.


text:
    STATE of Florida, Appellant, v. Michael WILBURN, Appellee.
    No. 4D11-1097.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried and Melynda L. Melear, Assistant Attorneys General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State appeals the trial court’s order granting Michael Wilburn’s motion to suppress. We reverse.

Wilburn was charged with several counts of possession of illegal drugs. Before trial, he filed a motion to suppress the drugs which he argued were illegally seized because the police failed to obtain a search warrant. In support of the seizure, the State presented the testimony of the detective who seized the drugs. The detective, who was the State’s only witness, testified that his unit received an anonymous tip that narcotics and firearms were being sold from within an apartment. The tipster advised the police of the specific address. The detective and his squad went to the address.

Two other officers knocked on the apartment door and made contact with the renter. The officers obtained written consent from the tenant to search the apartment. Wilburn, a visitor in the apartment, was asked to step outside. While outside, Wilburn came in contact with the detective who escorted Wilburn five feet away from the front door and asked him to have a seat on the sidewalk. At this point, the detective asked Wilburn for identification. Wilburn put his hand in his pocket, attempting to comply, and removed his hand very quickly. Thinking this action was curious, the detective asked Wilburn to stand and face the building and repeated his request for identification. Wilburn then removed his license from his right front pants pocket, at which time a clear plastic “Ziploe” baggie containing three crack cocaine rocks fell to the ground. The detective handcuffed Wilburn and, during a pat down search, found more drugs in Wilburn’s pocket.

Over an authentication objection by Wilburn, the written consent form was admitted into evidence. At the conclusion of the State’s presentation of evidence, Wilburn’s counsel argued that the State failed to prove venue and that Wilburn was improperly seized by the police. The trial court granted the motion on the grounds that the State failed to establish venue by failing to present evidence that the crime was committed in the county where Wilburn was charged. In granting the motion, the court made the following findings:

THE COURT: They don’t need to. What you need to focus on is the detective is absolutely right that he went in the lady — there was no evidence that Mr. Wilburn owned the apartment. That the detectives could go in on consent of the lessee. They went in. What happened inside was totally different than what happened outside ...
What is more telling is not what the detectives did or did not do because they acted pursuant to law.
The detective in this case, Mr. Wilburn, of course, having drugs on him, reached in his pocket to get I.D. and it fell out. That’s what we had. If that’s all I had, the motion would be denied because the detectives and law enforcement did what they were supposed to do pursuant to all law, U.S. Supreme Court cases, as well as Florida Supreme Court and the Fourth District.

On appeal, the State contends that the trial court erred in determining that venue was not established. On this issue, Wilburn correctly concedes that the trial court erred in granting the motion to suppress based on lack of venue. We therefore reverse the order granting the motion to suppress.

Conceding error on the venue question, Wilburn nonetheless argues that the trial court correctly suppressed the evidence. Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). Addressing his argument, we discuss two issues: 1) Wilburn contends that the State failed to properly authenticate the signed consent form, 2) He also argues that the owner’s consent to search did not serve as justification for the police to temporarily detain him as a visitor.

The standard of review applicable to a motion to suppress requires this court to defer to the trial court’s factual findings but review legal conclusions de novo. Woods v. State, 25 So.3d 669, 670 (Fla. 4th DCA 2010).

We begin with whether the State failed to authenticate the consent form in order for it to be properly admitted into evidence. Section 90.901, Florida Statutes (2010), provides “[ajuthentication ... of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Direct and circumstantial evidence may be used to make a prima facie showing that evidence is authentic. Yates v. Bass Ranch, Inc., 379 So.2d 710, 711 (Fla. 4th DCA 1980). Evidence may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. See Hams v. State, 619. So.2d 340, 342 (Fla. 1st DCA 1993).

The detective testified that the consent form was signed on the date of the incident by pointing to the date of the case number. He further testified that the form was signed by two other officers, who were on the scene with him, and that he is familiar with their signatures. Lastly, the form contained the correct case number. We hold that the detective properly authenticated the consent form, thus allowing for its introduction. In so holding, we also conclude that the State established that the search of the apartment was consensual.

Next, Wilburn argues that the war-rantless search did not justify the temporary detention of visitors. The Second District addressed the temporary detention of a co-tenant during the warrantless search of his residence in State v. Yule, 905 So.2d 251 (Fla. 2d DCA 2005).

If a residence is being validly searched, it is proper for officers to detain and conduct a search of the individuals found at that residence for safety purposes. Id. In Yule, William Yule and Stacy Ellison, his female co-tenant, shared a residence. Id. at 252. Ellison was on probation when her probation officer received a complaint from a relative that she was dealing drugs out of her residence. Id. Two probation officers, accompanied by two detectives, went to the residence to conduct a warrantless search for drugs as evidence of a probation violation. Id. Ellison agreed to a search of the residence. Id. Yule and another woman were found in the living room and were instructed by the detectives to remain in the living room while a search was conducted of Ellison’s bedroom. Id. During the search, one of the detectives asked Yule “if he had any weapons on him” to which Yule responded that “he had a knife in his pocket.” Id. The detective took the knife from Yule and then asked him if he had any more weapons on his person. Id. at 252-53. Yule responded no and “lifted up his shirt and turned around as to display if he had any weapons on him.” Id. at 253. When Yule lifted his shirt, the detective observed an “empty pen cartridge sticking out of the rear of his pocket” that had “a white residue in it.” Id. Based on his training and experience, “the detective concluded that the pen cartridge “was used to ingest methamphetamine.” The detective then conducted a pat down of Yule and retrieved “four other tubes and cartridges” from his pocket.” Id.

In his motion to suppress, Yule contend: ed the physical evidence and his statements were obtained as the result of an illegal warrantless search and an illegal investigatory detention. Id. The trial court granted the motion. Id. Reversing the trial court’s order, the Second District held that:

Once lawfully inside the residence, the detectives encountered Yule in the living room of the residence, instructed him to stay in the living room for reasons of officer safety, and one of the detectives asked him if he had any weapons. We conclude that the interest in officer safety provided an adequate justification for Yule’s initial detention and the detective’s inquiry concerning weapons ... The probationary search of the residence was justified and the detectives properly accompanied the probation officers during the search to provide additional security. To secure the premises and ensure officer safety, the detectives properly detained and questioned Yule. At each step along the way, the probation officers and the detectives acted based on proper legal authority.

Id. at 255.

Here, the officers made contact with the renter and obtained his written consent to search the apartment. Once inside, the officers came in contact with Wilburn and asked him to step outside. While outside, Wilburn came in contact with the detective and was asked to produce his identification. In response, Wilburn put his hand in his pocket and removed it quickly. Finding Wilburn’s action curious, the detective asked Wilburn to stand up, face the building and repeated his request for identification. Wilburn again put his hand in his pocket and while producing his license, a clear plastic bag fell from his right front pants pocket. At that point, the detective handcuffed him, conducted a pat down, and retrieved more drugs. We think the Second District’s holding in Yule is applicable to this case and conclude that it was permissible for the detective to temporarily detain Wilburn, an occupant of a residence, while a warrantless search of the residence was being conducted.

Finally, Wilburn asserts that because he was a mere visitor to the apartment, the officers had no right to have him face the wall and request his identification. The improper request led to him accidentally dropping the drugs; therefore his arrest and discovery of drugs must be suppressed as fruit of the poisonous tree. We conclude that it was permissible for the detective to ask Wilburn, who was properly detained during a warrantless search of the apartment, for identification. State v. Ramos, 598 So.2d 267, 269 (Fla. 3d DCA 1992) (holding that it is permissible during a valid Terry stop for an officer to ask the person detained for identification.).

Reversed.

STEVENSON and CONNER, JJ„ concur.

WARNER, J., concurs in result only.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    Carlos E. SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2379.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Carlos E. Shaw, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s rule 3.850 motion. The motion was untimely. Fla. R.Crim. P. 3.850. Further, appellant’s claim is without merit. Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

Affirmed.

POLEN, STEVENSON and HAZOURI, JJ., concur.


text:
    John CLARK, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2297.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    John Clark, Sr., Stuart, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Spera v. State, 971 So.2d 754 (Fla.2007).

STEVENSON, TAYLOR and GERBER, JJ., concur.


text:
    Eddy Junior JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3568.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See McKinney v. State, 27 So.3d 160 (Fla. 1st DCA 2010).

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Lester E. SUMNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4577.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, CIKLIN, JJ., and WALSH, LISA S., Associate Judge, concur.


author: COHEN, J.

text:
    Gabor F. GABRIEL, Appellant, v. DISNEY CRUISE LINE, Appellee.
    No. 5D11-2091.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.
    Rehearing Denied Aug. 27, 2012.

      Neil Rose of Bernstein, Chackman, Liss & Rose, Hollywood, and Steven M. Dunn of Steven M. Dunn, P.A., Bay Harbor Islands, for Appellant.
    Michael J. Dono and Jerry D. Hamilton of Hamilton, Miller & Birthisel, LLP, Miami, for Appellee.
   COHEN, J.

Appellant, Gabor F. Gabriel (“Gabriel”), appeals from the trial court’s summary judgment of his complaint for unseaworthiness, Jones Act negligence, and maintenance and cure, entered in favor of Appel-lee, Magical Cruise Company, Ltd., d/b/a Disney Cruise Line (“DCL”). Finding no error as to the unseaworthiness and negligence claim related to the cause of his injuries, we affirm without comment.

Gabriel, a professional musician, sustained an injury during the course of his employment aboard a DCL cruise ship in 2007. After receiving medical care on-board and from a specialist in the Caribbean, he went on medical disembark and was treated by Dr. Ferenc Tóth, an orthopedic surgeon. Dr. Tóth performed two surgeries to treat the loss of movement in Gabriel’s shoulder, a torn rotator cuff, and tennis elbow.

Subsequent to the procedures, Dr. Tóth issued two reports detailing his opinion and recommendations as to Gabriel’s wellness. In the first report, dated January 4, 2008, the doctor opined that Gabriel’s shoulder and elbow had fully recovered, that Gabriel had achieved maximum medical improvement (“MMI”), and that Gabriel could return to playing music professionally. The second report, however, dated January 29, 2008, clearly advised against his returning to his craft. Also in the second report, the doctor confirmed the success of the surgeries and that Gabriel, while not fully improved, reached the “possible” level of improvement. It is undisputed that DCL covered Gabriel’s medical expenses up to January 2008.

Several months later, Gabriel began playing music again and the pain returned. He sought further treatment and consequently filed this action against DCL. Two of the four counts of the complaint alleged that DCL failed to provide him with maintenance and cure for his injuries, and that DCL was negligent under the Jones Act for failing to provide him with prompt and adequate medical care. In support of his claims, Gabriel alleged he had not reached MMI in January 2008.

In late 2009, Dr. Stephen Wender, an orthopedic surgeon, examined Gabriel and opined in an affidavit that Gabriel had not reached MMI in January 2008. Several months after issuing the affidavit, Dr. Wender was deposed by DCL’s counsel regarding Dr. Toth’s reports and opinion. DCL asked Dr. Wender whether Dr. Toth’s reports reflected an unequivocal MMI date, which he agreed they did. DCL then questioned whether Dr. Wender had “[a]ny reason to doubt” what was reflected in Dr. Toth’s reports, which he did not. Finally, Dr. Wender was asked— from his “interpretation” of Dr. Toth’s reports — whether Gabriel reached MMI in January 2008, to which he answered yes.

Pursuant to Dr. Toth’s reports and Dr. Wender’s deposition testimony, DCL moved for summary judgment, arguing there was no dispute DCL provided the required maintenance and cure and proper medical care until Gabriel reached MMI in January 2008. After a hearing, the trial court granted DCL’s motion for summary judgment.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000); see Fla. R. Civ. P. 1.510(c). The burden of proving the nonexistence of any genuine issue of material fact is on the moving party. Hall v. Talcott, 191 So.2d 40, 43 (Fla.1966); see also Lane v. Tripp, 788 So.2d 351, 352 (Fla. 3d DCA 2001) (providing that movant has more onerous burden in Jones Act negligence cases). The evidence contained in the record, including any supporting affidavits, must be viewed in the light most favorable to the non-moving party. Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001). If the slightest doubt exists, then summary judgment must be reversed. See Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

Under general maritime law, a seaman has the right to receive compensation for food, lodging, and medical services resulting from illnesses or injuries suffered while working aboard a ship. Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); see also Langmead v. Admiral Cruises, Inc., 610 So.2d 565, 567 (Fla. 3d DCA 1992). The duty to provide said compensation, i.e., maintenance and cure, continues during a seaman’s recuperative period until “maximum medical recovery,” or MMI, is reached. Vaughan, 369 U.S. at 531, 82 S.Ct. 997.

Dr. Wender’s affidavit stating Gabriel had not reached MMI in January 2008 establishes a genuine issue as to a material fact precluding summary judgment. DCL claims Dr. Wender changed his opinion at his deposition, but its position would require an inference upon an inference that this Court is unwilling to make. A fair reading of the deposition testimony reveals that DCL failed to ask Dr. Wender whether he changed his medical opinion expressed in the affidavit. Instead, DCL asked ambiguous questions at the deposition about Dr. Wender’s interpretation of the MMI date reflected in Dr. Toth’s reports.

Reversal of the maintenance and cure claim, however, does not necessarily equate to reversal of Gabriel’s second Jones Act claim that DCL was negligent for failing to provide prompt and adequate medical care after January 2008. See generally Olsen v. Am. S.S. Co., 176 F.3d 891, 895 (6th Cir.1999) (identifying shipowner’s failure of duty to provide prompt and adequate medical care to sick or injured crewman as Jones Act negligence claim). A shipowner is required to provide prompt and adequate medical care as is reasonable under the circumstances. Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1533 n. 6 (11th Cir.1990) (citing Barlow v. Pan Atl. S.S. Corp., 101 F.2d 697, 698 (2d Cir. 1939)). There is no duty to provide such care to the limits of MMI. Garay, 904 F.2d at n. 6. As there is no evidence of negligence concerning the medical care Gabriel received from the date of his injury to January 2008, the trial court’s entry of summary judgment as to this claim is affirmed.

Accordingly, the trial court’s entry of summary judgment as to the maintenance and cure claim is reversed. Summary judgment as to the prompt and adequate medical care claim is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

GRIFFIN and SAWAYA, JJ., concur.

      . 46 U.S.C. § 30104(2008).

      . Gleaning from the record and the trial court's ruling, this Court cannot determine whether maintenance and cure would be barred at any point after January 2008 due to willful misbehavior on Gabriel’s part for playing music professionally after receiving Dr. Toth's instructions to the contrary. See Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 731, 63 S.Ct. 930, 87 L.Ed. 1107 (1943) (providing that willful misbehavior deprives a seaman of maintenance and cure).


author: WALLACE, Judge.

text:
    ZIRKELBACH CONSTRUCTION, INC., Petitioner, v. Govin T. RAJAN, Respondent.
    No. 2D11-3813.
    District Court of Appeal of Florida, Second District.
    July 27, 2012.

      W. Scott Hamilton and Diane R. McGinness of Price, Hamilton & Price, Chtd., Bradenton, for Petitioner.
    Michael W. Cochran and Charles J. Bartlett of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Respondent.
   WALLACE, Judge.

Zirkelbach Construction, Inc., petitions this court for a writ of certiorari quashing an order granting Govin T. Rajan’s motion to compel the production of certain documents and denying Zirkelbaeh’s motion for a protective order. We grant the petition (1) because the documents requested are part of an insurance company’s claim file and the work product privilege protects them from discovery and (2) because Mr. Rajan did not prove that he needed the documents to prepare his case and that he was unable, without undue hardship, to obtain the substantial equivalent of those documents by other means.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The underlying action involves a con-struetion dispute. On October 20, 2000, Mr. Rajan entered into a contract with Zirkelbach for the construction of a single-family residence. According to Mr. Rajan, a certifícate of occupancy was issued on June 20, 2002, and on the weekend of July 4, 2002, the Rajan family moved into the residence. Mr. Rajan alleged in his complaint “that the residence was constructed in a defective manner causing numerous water intrusions into the residence from multiple sources that continue to this day.” Mr. Rajan alleged further that “[t]he numerous water intrusions have caused catastrophic damage to the residence.”

Zirkelbach’s liability carrier was Auto-Owners Insurance Company. In a motion filed seeking documents from Auto-Owners’ claims file, Mr. Rajan made the following additional allegations. In mid-2003, Auto-Owners began handling the claim. The adjuster for Auto-Owners, Chet Ked-zierski, reported the date of loss as July 81, 2008. For approximately the next three years, Mr. “Kedzierski hired contractors to assess the source of the water intrusions and [to] assess the damage to the structure.” On March 8, 2007, Mr. Kedzierski notified Mr. Rajan’s counsel that the statute of limitations had run and that Auto-Owners had denied Mr. Rajan’s claim.

On March 29, 2007, Mr. Rajan filed an action against Zirkelbach for damages. Zirkelbach raised various defenses to the complaint and also filed a counterclaim. One of Zirkelbach’s defenses to the action was that the statute of limitations barred Mr. Rajan’s claims. Zirkelbach argued that Mr. Rajan knew of the leaks immediately upon taking occupancy on or about July 4, 2002. Therefore, he had until July 4, 2006, to file an action before the statute of limitations ran. Because Mr. Rajan did not file his action until March 29, 2007, his claims were barred. Zirkelbach also asserted that releases signed by Mr. Rajan and the doctrine of accord and satisfaction operated to bar Mr. Rajan’s claims. Finally, Zirkelbach contended that Mr. Rajan had not taken all possible steps to mitigate his damages.

In reply to Zirkelbach’s statute-of-limitations defense, Mr. Rajan argued that the statute of limitations had not run because Auto-Owners had determined the date of loss to be July 31, 2003, and he had filed his action within four years of that date. Alternatively, Mr. Rajan argued that because Zirkelbach and Auto-Owners led him to believe that they would repair the leaks, the doctrines of equitable estoppel and equitable tolling rendered the statute of limitations inapplicable to bar his claims.

During discovery, Mr. Rajan served a notice of taking deposition duces tecum of Mr. Kedzierski in which Mr. Rajan sought the production of fifteen broad categories of documents and correspondence from Auto-Owners’ claims file. Auto-Owners refused to produce the requested documents, claiming the benefit of the work-product privilege. Mr. Rajan filed a motion to compel, and Zirkelbach responded with a motion for a protective order. Mr. Rajan did not file any affidavits in support of his motion; Zirkelbach did not support its motion with any affidavits either. Moreover, neither of them offered any evidence at the hearing on the motions.

At the motion hearing, the circuit court addressed the parties’ discovery dispute by ordering production to the court of the materials in Auto-Owners’ claims file generated through April 1, 2007. The circuit court proposed to review the documents in camera before ruling on the parties’ pending discovery motions. The circuit court apparently reasoned that Auto-Owners was entitled to withhold documents generated after April 1, 2007, because such documents “were generated in anticipation of litigation.” Presumably, the circuit court viewed the post-April 1, 2007, documents as indubitably constituting protected work product materials.

The circuit court reviewed the portions of Auto-Owners’ claims file generated on or before April 1, 2007, to determine “which documents must be produced to [Mr. Rajan] based on the following three criteria: a) which documents are not work product, b) which documents are relevant to the case, and c) which documents are more prejudicial than probative.” After conducting its review, the circuit court identified 164.5 pages that it “found were prepared in anticipation of litigation and are not legally necessary and relevant for disclosure.” The circuit court also identified 421.5 pages that it found were “not to be prepared in anticipation of litigation and are legally necessary and relevant for disclosure to [Mr. Rajan].” Ultimately, the circuit court ordered the production to Mr. Rajan of the 421.5 pages of materials that it deemed to be both relevant and not work product.

II. THE STANDARD OF REVIEW

A trial court has broad discretion in discovery matters. Nat’l Union Fire Ins. Co. of Pittsburgh Pa. v. Fla. Constr., Commerce & Indus. Self Insurers Fund, 720 So.2d 535, 535 (Fla. 2d DCA 1998). “[R]eview by certiorari is appropriate when a discovery order departs 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.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); see also Nat’l Union, 720 So.2d at 535-36; Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855, 856 (Fla. 2d DCA 1997).

III. DISCUSSION

The work product privilege protects from discovery “documents and tangible things otherwise discoverable” if a party prepared those items “in anticipation of litigation or for trial.” Fla. R. Civ. P. 1.280(b)(3). An insurer’s claim file generally constitutes work product and will be protected from discovery prior to a determination of coverage. GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122, 124 (Fla. 2d DCA 2006); see also Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So.2d 250, 251-52 (Fla. 3d DCA 2002) (“Neither the insured nor the injured third party is entitled to discovery of the claims file ... because the claims file is the insurer’s work product.”). Accordingly, an order compelling production of an insurer’s claim file when the issue of coverage is unresolved has been held to constitute a departure from the essential requirements of law for which certiorari relief is appropriate. Scottsdale Ins., 813 So.2d at 251-52; Superior Ins. Co. v. Holden, 642 So.2d 1139, 1140 (Fla. 4th DCA 1994). On the other hand, a party may obtain documents that are otherwise protected by the work product privilege if it can show that it “has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P. 1.280(b)(3). This exception applies to an insurer’s claim file. Nat’l Sec. Fire & Cas. Co. v. Dunn, 705 So.2d 605, 607-08 (Fla. 5th DCA 1997).

In his motion to compel production of the documents, Mr. Rajan requested that the trial court:

1) make a finding that ... Auto Owner’s [sic] participation in the case became “in anticipation of litigation” on March 8, 2007 when it formally denied the claim,
2) make a finding that nothing in the claims file prior to March 8, 2007 is protected work product,
3) make a finding that nothing Auto Owner’s [sic] did to investigate or adjust the claim prior to March 8, 2007 is protected work product,
4) order that all documents in the claims file pre-dating March 8, 2007 be turned over to Rajan (or, at a minimum, be reviewed by the Court in camera to determine whether some other basis exists for Zirkelbach’s claimed privilege),
5) order Kedzierski to appear for a second deposition in order to respond to the questions improperly objected to and to discuss the documents in the claims file which Zirkelbach is ordered to produce in accordance with the instant motion, and
6) order Zirkelbach to pay the attorneys’ fees incurred by Rajan in prosecuting the instant motion, in accordance with Rule 1.380(a)(4), Florida Rules of Civil Procedure.

Thus Mr. Rajan’s focus in the circuit court was whether the claims handling materials from Auto-Owners’ file were protected work product, not whether the materials were necessary for the preparation of Mr. Rajan’s case and were unobtainable, without undue hardship, by other means.

On the work product issue, Mr. Rajan relies primarily — as he did in the circuit court — on cases decided by the Fourth District Court of Appeal. However, the Fourth District’s approach to this subject differs from the approach adopted by Florida’s four other district courts of appeal. All of the district courts hold generally that the work product privilege attaches to statements and materials prepared by a party’s investigator or insurer in anticipation of litigation. Nevertheless, the district courts differ concerning the meaning of “prepared in anticipation of litigation.” In the Fourth District, materials do not constitute protected work product unless they were prepared when the probability of litigation was “substantial and imminent.” Liberty Mut. Fire Ins. Co. v. Bennett, 883 So.2d 373, 374 (Fla. 4th DCA 2004), decision quashed on other grounds, 905 So.2d 119, 120 (Fla.2005); see also Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So.2d 595, 596 (Fla. 4th DCA 1984) (“The work product privilege attaches to statements and materials prepared by a party’s investigator or insurer only if these were prepared in contemplation of litigation. Mere likelihood of litigation does not satisfy this qualification.” (citations omitted)).

However, the Second District applies a less stringent foreseeability standard:

[Mjaterials such as these may qualify as work product even if, as here, no specific litigation was pending at the time the materials were compiled. Even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.

Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So.2d 760, 761 (Fla. 2d DCA 1989). “The key factor in [this] determination is whether the documents were ‘prepared in anticipation of litigation.’ It is not necessary that the documents be prepared for imminent or ongoing litigation.” Waste Mgmt., Inc. v. Fla. Power & Light Co., 571 So.2d 507, 509 (Fla. 2d DCA 1990). Instead, “[t]he trial court must focus on whether there is some event which could foreseeably be the basis of future litigation that compels the creation of the documents.” Nat’l Union, 720 So.2d at 537 (also noting that a contrary result was reached in Cotton States). With the exception of the Fourth District, each of our sister districts has adopted the same foreseeability standard. See Marshalls of MA, Inc. v. Minsal, 932 So.2d 444, 447 (Fla. 3d DCA 2006) (comparing the foreseeability standard adopted by the First, Second, Third, and Fifth Districts with the “substantial and imminent” standard adopted by the Fourth District). The Fourth District has recognized “that [its] position conflicts with decisions from other districts finding that statements are privileged and protected as work product when they were taken at a time when it was foreseeable that litigation would arise.” Allstate Indem. Co. v. Ruiz, 780 So.2d 239, 241 (Fla. 4th DCA 2001), decision quashed on other grounds, 899 So.2d 1121 (Fla. 2005). To date, the Supreme Court of Florida has not resolved the conflict among the district courts on this issue.

Unfortunately, in reaching its ruling, the circuit court relied primarily on the cases from the Fourth District cited by Mr. Ra-jan. The circuit court should have applied the controlling precedent from this court instead of cases from the Fourth District.

We have reviewed the documents that the circuit court identified and ordered to be produced to Mr. Rajan. These documents consist of claims handling materials and are clearly Auto-Owners’ protected work product. See Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009) (“[Requiring the disclosure of claim file materials during the litigation of coverage issues would result in irreparable harm that cannot be adequately addressed on appeal.”); Utica Mut. Ins. Co. v. Croft, 432 So.2d 196, 197 (Fla. 1st DCA 1983) (“Our examination of the contents of the claims file reveals that it contains the personal thoughts of Utica’s employees regarding evaluation of the claim and possible settlement offers. The work product doctrine clearly was designed to protect matters such as these from discovery.”).

As noted above, an exception to the rule protecting work product from discovery exists where a litigant can show that he or she needs the documents to prepare his or her case and that the litigant is unable to obtain the substantial equivalent of the materials by other means without undue hardship. Fla. R. Civ. P. 1.280(b)(3). This exception applies to insurance claim flies. Dunn, 705 So.2d at 607-08. In his petition for writ of certio-rari, Mr. Rajan argues that this exception is applicable here. Mr. Rajan’s arguments on this point may have merit. However, we may not consider these arguments because he did not present any evidence on this issue in the circuit court. Mr. Rajan did not support his motion to compel with any affidavits, and he did not present any evidence at the hearing. In response to a question from the circuit court at the hearing, Mr. Rajan’s counsel made an offhand assertion of a need for the requested materials. However, the argument of counsel is not a substitute for evidence. State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988) (“[Representations by counsel not made under oath and not subject to cross-examination, absent a stipulation, are not evidence.”).

To show “need,” a party must present testimony or evidence demonstrating the material requested is critical to the theory of the requestor’s case, or to some significant aspect of the case. Once the trial court knows the request- or’s theory as to why the items are needed ..., the trial court should then conduct an in camera review. During this review, the trial court can evaluate whether the contested materials provide the requisite evidentiary value alleged by the requesting party, and determine whether the requested materials are substantially similar to materials already available.

Metric Eng’g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003) (emphasis added); see also CSX Transp., Inc. v. Carpenter, 725 So.2d 434, 435 (Fla. 2d DCA 1999) (quashing order granting motion to compel discovery because the record did not contain affidavits or testimony in support of the plaintiffs argument that it was unable to obtain the substantial equivalent of the materials by other means without undue hardship); Falco v. N. Shore Labs. Corp., 866 So.2d 1255, 1257 (Fla. 1st DCA 2004) (holding that need and undue hardship “must be demonstrated by affidavit or sworn testimony”); N. Broward Hosp. Dist. v. Button, 592 So.2d 367, 368 (Fla. 4th DCA 1992), (“[T]he unsworn assertions of plaintiffs counsel were insufficient to constitute a showing of need and undue hardship.”), called into doubt on other grounds as stated in Columbia Hosp. Corp. of S. Broward v. Fain, 16 So.3d 236 (Fla. 4th DCA 2009).

IV. CONCLUSION

Because Mr. Rajan failed to make the required showing of need and inability to obtain Auto-Owners’ protected claims handling materials by other means without undue hardship, the circuit court departed from the essential requirements of law in compelling Auto-Owners to disclose the materials. Accordingly, we grant Zirkel-bach’s petition and quash the circuit court’s order requiring disclosure of the materials culled from Auto-Owners’ claims file. Our disposition of the petition is without prejudice to Mr. Rajan’s right to seek again the production of the materials in question if he can show, at an evidentia-ry hearing, that he needs them to prepare his case and that he is unable to obtain the substantial equivalent of the materials by other means without undue hardship. See Fireman’s Fund Ins. Co. v. Signorelli, 681 So.2d 720, 721-22 (Fla. 2d DCA 1996).

Petition granted; order quashed.

KELLY and KHOUZAM, JJ„ Concur.

      . Many of the facts in this case are disputed by the parties. The parties’ contentions remain to be resolved at trial.

      . Zirkelbach relied on the four-year statute of limitations in section 95.11 (3)(c), Florida Statutes (2006).

      .Auto-Owners did not claim in its motion for protective order that any of the documents requested were protected by the attorney-client privilege. However, Auto-Owners did raise that issue at the motion hearing. It does not appear that any of the materials that the circuit court ordered to be produced are protected by the attorney-client privilege, and the parties have not addressed the issue of the applicability of the attorney-client privilege in their arguments in this court.

      . But the claim file may be discoverable when an insurer is sued for bad faith after any coverage dispute has been settled. Allstate Indent. Co. v. Ruiz, 899 So.2d 1121, 1129-30 (Fla.2005).

      . Mr. Rajan did not refer to the exceptions to the work product privilege in his written motion to compel. He simply argued that the requested material was not work product.


text:
    Brian L. WILSON, Appellant, v. Michelle L. WILSON, Appellee.
    No. 5D11-3806.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.
    Rehearing Denied Aug. 30, 2012.

      Brian L. Wilson, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Brian Wilson timely appeals, pro se, from a domestic violence injunction issued in favor of his former wife. He argues that his former wife failed to present sufficient evidence to prove stalking, assault or any other crime necessary to warrant an injunction. Although the evidence was insufficient to establish domestic violence by an assault, it was sufficient to prove two other independent grounds for the injunction: domestic violence by stalking and acts giving the former wife reasonable cause to believe she is in imminent danger of becoming a victim of an act of domestic violence. See §§ 741.28(2), (3); 741.3000(a), (e) Fla. Stat. (2011). Accordingly, we affirm the injunction order.

AFFIRMED.

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


author: WHATLEY, Judge.

text:
    Joshua McCLENDON, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-3479.
    District Court of Appeal of Florida, Second District.
    July 27, 2012.
    Joshua McClendon, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Respondent.
   WHATLEY, Judge.

Joshua McClendon, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(d), raises three claims of ineffective assistance of appellate counsel. We deny two claims without comment. In the remaining claim, McClendon contends that appellate counsel was ineffective in failing to argue that the standard jury instruction for attempted manslaughter by act that was provided to the jury constituted fundamental error because it improperly imposed an additional element of an intent to kill.

McClendon was charged with two counts of attempted first-degree premeditated murder. Following a jury trial, he was convicted of the lesser-included offenses of attempted second-degree murder and improper exhibition of a firearm. The jury was instructed on both attempted second-degree murder and attempted manslaughter by act as category one lesser-included offenses of attempted first-degree premeditated murder. See Fla. Std. Jury Instr. (Crim.) 6.2. The State, in its response to the petition, acknowledges that our decision in this case is governed by this court’s opinion in Betts v. State, — So.3d —, 2011 WL 6058312 (Fla.2011), and that McClendon is entitled to relief.

Accordingly, because a new appeal would be redundant in this case, we reverse McClendon’s attempted second-degree murder conviction, vacate the sentence, and remand for a new trial. See Betts, — So.3d —. As we did in Betts, we certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).

Petition granted in part and denied in part; conflict certified.

DAVIS and VILLANTI, JJ., Concur.

      . As in Betts, the notice of appeal from the judgment and convictions in the present case was filed subsequent to both the issuance of Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla. 2010), which was the first case to hold that the then standard manslaughter by act instruction was fundamentally erroneous because it imposed an additional element of an intent to kill, and the unpublished opinion of the supreme court accepting review of that decision.

      . McClendon’s conviction for improper exhibition of a firearm is not affected by our decision in this case.


text:
    Isaac E. RUTHERFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1724.
    District Court of Appeal of Florida, First District.
    July 27, 2012.
    Isaac E. Rutherford, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Isaac E. Rutherford appeals from an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) based upon his failure to allege a sufficient rule 3.800(a) claim. For the reasons discussed below, we affirm.

A rule 3.800(a) motion to correct an illegal sentence is intended to address cases in which the sentence imposes “a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” Carter v. State, 786 So.2d 1173, 1178 (Fla.2001) (quoting Blakley v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999)). In the instant case, however, the appellant does not explain how his sentence fails to comport with statutory or constitutional limitations. Instead, he focuses entirely on the alleged flaws in the procedure used to impose his sentence and specifically on the court’s failure to consider certain mitigating factors pursuant to section 921.141, Florida Statutes (1995). However, this is not a proper basis for a rule 3.800(a) motion and the appellant’s motion is insufficient for failure to allege that his sentence, itself, is illegal. See Young v. State, 38 So.3d 151 (Fla. 4th DCA 2010); Judge v. State, 596 So.2d 73, 77 (Fla. 2d DCA 1991) (concluding that rule 3.800(a) is meant to challenge the sentence imposed and not the procedures employed in its imposition).

Accordingly, we affirm the trial court’s order denying the appellant’s rule 3.800(a) motion.

AFFIRMED.

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


text:
    Thomas GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3473.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla. 2012).

PALMER, TORPY and COHEN, JJ., concur.


text:
    S.D., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3742.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla. 2012).

GRIFFIN, EVANDER, and COHEN, JJ., concur.


text:
    Michael HARRINGTON, II, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4465.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla. 2012).

PALMER, TORPY and EVANDER, JJ., concur.


text:
    Kevin GOLDSBY, Sr., John Paul Francolino, Kenneth Paden Gragg, James F. Hadsell, Jr., Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-89, 5D12-90, 5D12-94, 5D12-365.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla. 2012).

PALMER, TORPY and COHEN, JJ., concur.


text:
    Daniel CURTIN, William Boyle, Amy Swope, Haylee Gardner, Keith Charest, Cody Clouser, Brenda Muncy, Charles Bentivegna, Danny Johnson, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-186, 5D12-188, 5D12-194, 5D12-195, 5D12-196, 5D12-198, 5D12-312, 5D12-313, 5D12-314.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla.2012).

PALMER, TORPY and COHEN, JJ., concur.


text:
    Dexter Jerome SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3196.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker and Aliene S. Rogers, Assistants Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla. 2012).

SAWAYA, LAWSON and COHEN, JJ., concur.


text:
    Tara WEAVER, Brooke Gardner, Anthony Cantalupo, Charles Seabrook, Jr., Richard Towers, Curtis Jones, Rebecca Rider, Tyler Wells, Jessica Burley, Richard Burritt, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-8, 5D12-9, 5D12-11, 5D12-12, 5D12-13, 5D12-76, 5D12-107, 5D12-109, 5D12-110, 5D12-182.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla. 2012).

PALMER, TORPY and COHEN, JJ., concur.


text:
    Charles T. STOKES, Appellant v. STATE of Florida, Appellee.
    No. 5D12-2680.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    Charles Stokes, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.Sd 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla. 2012).

EVANDER, COHEN and JACOBUS, JJ., concur.


text:
    Jimmy Brisco DULLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2250.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.

      Jimmy B. Dulls, Jacksonville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Drumwright v. State, 572 So.2d 1029 (Fla. 5th DCA 1991).

PALMER, LAWSON and COHEN, JJ., concur.


text:
    Matthew Ryan LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2128.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2012.
    Matthew Ryan Lopez, East Palatka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012), corrected opinion, 37 Fla. L. Weekly S528 (Fla. 2012).

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


author: BLACK, Judge.

text:
    J.L.B., Petitioner, v. Edwin B. KELLY, acting Superintendent, Respondent.
    No. 2D12-2812.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2012.

      Larry Eger, Public Defender, and Gino Lombardi, Assistant Public Defender, Bra-denton, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Respondent.
   BLACK, Judge.

J.L.B. petitioned this court for a writ of habeas corpus, challenging the validity of his detention pending juvenile delinquency proceedings. Because J.L.B. was released from detention shortly after the petition was filed, we dismissed the petition as moot. However, because the improper scoring of the Risk Assessment Instrument (RAI) by the circuit court is capable of repetition yet evading review, see T.T. v. Esieves, 828 So.2d 449, 450 (Fla. 4th DCA 2002), we issue this opinion.

When J.L.B. appeared before the court for an initial detention hearing, he scored nine points on the RAI. At that time, a representative from the Department of Juvenile Justice (DJJ) indicated that J.L.B. was possibly a gang member who had committed the offense while under DJJ supervision. Based on that circumstance, the circuit judge believed that an additional three points could be added, which would justify placing J.L.B. in secure detention. However, the court wanted proof of gang activity and rescheduled the hearing for a later date.

At the second hearing, no evidence was presented that J.L.B. was a gang member or that he had committed the new offense — burglary—while under DJJ supervision. Thus, his RAI total stood at nine points, which would require that he be released on nonsecure or home detention. Nevertheless, the circuit judge determined that three additional points could be added as aggravators on the RAI based on two factors: the “high risk” nature of his prior commitment and the circumstances of the current burglary offense. The court observed that this particular burglary was “a crime of secrecy, a crime of skill, a crime of stealth and that the only way he was arrested was that he had left fingerprints”; J.L.B. did not simply do “something outlandish or stupid, but he was quite clever and skilled at it.” The petitioner’s attorney generally objected to the addition of aggravating points and specifically argued that the petitioner’s criminal history was already factored into the RAI.

In his petition before this court, J.L.B. argues that the assessment of additional points for these factors constituted impermissible double scoring for circumstances already taken into account by the RAI. See D.G. v. Miles, 872 So.2d 343, 344 (Fla. 2d DCA 2004). The petitioner’s argument is well taken, and the State concedes as much. The circuit judge’s view was that adding points for the type of prior commitment — high risk — was not tantamount to scoring extra points for criminal history. However, there is nothing in the statute governing juvenile pretrial detention, section 985.24, Florida Statutes (2011), nor in the case law that would justify such a fine distinction. For example, in D.G., 872 So.2d at 344, this court granted the juvenile’s petition because the court assessed two aggravating points for violation of probation even though the juvenile had already been assessed one point for a prior offense with adjudication withheld. In T.B. v. State, 897 So.2d 530, 530 (Fla. 4th DCA 2005), the Fourth District found that it was improper to add an extra point as an aggravating factor for the juvenile’s “significant prior record” because prior record was accounted for in the prior history section of the RAI.

Similarly, assessing extra points based on the technique with or circumstances under which the juvenile allegedly committed the currently scored offense also constitutes double scoring. See M.W. v. Dep’t of Juvenile Justice, 15 So.3d 782, 784 (Fla. 1st DCA 2009) (holding that assessing three aggravating points based on use of a firearm was impermissible because the juvenile had already been assessed eight points for the offense of possession of a firearm); see also M.G. v. Berry, 998 So.2d 634, 635-36 (Fla. 3d DCA 2008) (holding that the circuit court improperly added points as an aggravating factor based on the facts of a charge for conspiracy to commit an armed robbery pending in the adult felony division because that circumstance was incorporated into the RAI for other current offenses and pending charges). In any event, as the respondent observed in its response to this petition, if the circuit judge relied only upon the fact that the petitioner was arrested for this crime because he left fingerprints to infer that J.L.B. employed stealth, secrecy, or skill in the commission of the crime, this legal conclusion may be flawed. See E.T.R. v. State, 873 So.2d 571, 573 (Fla. 2d DCA 2004) (“Even assuming that the evidence strongly suggests E.T.R.’s guilt of attempted burglary, it does not do so to the exclusion of all other inferences.”). Although the circuit judge declared at the hearing that he had “read all the cases” and concluded that nothing prevented him from assessing extra points for these aggravators, neither the respondent nor this court could locate any eases specifically permitting these additional aggravating points.

We hold that the assessment of aggravating points was improper in this case. Had this petition not been dismissed as moot, we would have been compelled to grant it based upon the reasoning expressed in this opinion.

WALLACE and LaROSE JJ„ Concur.


author: SILBERMAN, Chief Judge.

text:
    William P. CONNELL, as Personal Representative of the Estate of Peter W. Connell, Deceased, Appellant, v. Fana CONNELL, Appellee.
    No. 2D11-4139.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2012.

      Richard L. Pearse, Jr. of Pearse & Stin-son, P.A., Clearwater, for Appellant.
    Gary M. Schaaf of Becker & Poliakoff, P.A., Clearwater, for Appellee.
   SILBERMAN, Chief Judge.

William P. Connell, as personal representative of the estate of Peter W. Connell, deceased, appeals the trial court’s order, following a motion for rehearing, in which the court modified its initial determination as to a petition for aid in marshaling assets. The original order determined that a men’s Rolex watch purchased for $58,350 and a men’s diamond ring purchased for $19,386 were assets of the estate. On rehearing, the court determined that the watch and ring were the sole property of Fana Argiropoulos Connell, who was Peter Connell’s wife. Because the trial court properly determined in its original order that the watch and ring were estate assets, we reverse the order on rehearing.

Peter Connell (the decedent) passed away on March 22, 2010, when he was ninety-five years old. He was survived by Fana, whom he married on February 7, 2009. Prior to the marriage they had executed an Antenuptial Agreement.

Paragraph 3.2 of the Antenuptial Agreement provided, in pertinent part, for the decedent’s acquisition of separate property during the marriage as follows:

3.2 Waiver of Rights During Lifetime by ARGIROPOULOS. Except as otherwise specifically provided for herein, all property, both real and personal, tangible and intangible, belonging to CONNELL prior to the date of the marriage ceremony, or acquired by him thereafter, to include without limitation that property listed as his in Exhibit “B” hereto, if any, shall remain and be the sole and separate property of CON-NELL, and ARGIROPOULOS hereby waives and disclaims any and all right, title and interest therein arising by operation of the intended marriage of the parties under any law or statute of the State of Florida or of any other jurisdiction in which the parties may reside or in which such properties may be located, whether now in force or arising subsequent hereto.

Paragraph 4.2 of the Antenuptial Agreement dealt, in pertinent part, with the acquisition of jointly-held property during the marriage as follows:

4.2 Joint Property. The parties acknowledge that they may acquire jointly held property during the term of the marriage and the parties hereby agree that any property other than a marital home hereafter acquired jointly or in their joint names shall become and be considered the joint property of the parties, each party being entitled to one-half (1/2) of all the value associated with the ownership of said joint property as well as being required to assume one-half (1/2) of all liabilities attendant with the ownership of same. Upon the death of one party during the continuance of the marriage and prior to any divorce, dissolution or separation of the parties, such interest shall be dealt with in accordance with the provisions of Paragraph Five (5) of this Agreement.

Paragraph 5.2 of the Antenuptial Agreement provided, “Upon the death of one party during the continuation of the marriage and prior to any divorce, dissolution or separation of the parties, the survivor shall succeed to the entire interest of the deceased party in all other jointly-owned property.” Paragraph 5.3 directed that except as to the marital home and jointly-owned property, “each of the parties shall have the absolute and unrestricted privilege and power to dispose, on death, of any and all property which may belong solely to him or her at such time.”

After the execution of the Antenuptial Agreement, the decedent and Fana (referred to collectively as the Connells) established a joint checking account at Bank of America. The deposit agreement provided a choice to create a joint tenancy with the right of survivorship or a tenancy by the entireties. The Connells chose to create a joint tenancy with the right of survivorship. The Connells customarily kept $50,000 in the joint account. The account was funded almost entirely with the decedent’s separate funds. When the balance approached $10,000, Fana would call the decedent’s bank and have funds from the decedent’s separate trust transferred to the joint account. They both used the joint account to purchase anything they needed.

The decedent owned a jewelry store before he retired, and he enjoyed wearing expensive jewelry. In August 2009 the decedent was at a shopping mall with Fana, his son, John, the son’s wife, and a friend of the son. The decedent went into a jewelry store to look at watches and selected the gold and diamond Rolex watch at issue which cost $58,350. Because the joint checking account did not have sufficient funds to cover the purchase, Fana asked the son and son’s friend to lend money by charging a portion of the purchase price; the son charged $10,000 to his credit card and the friend charged a little over $9000 on his credit card. The balance was paid partially with the Connells’ debit card from the joint account and partially with the Connells’ joint credit card that was paid for from the joint account. And Fana paid for $205 of the purchase price with cash from her wallet. The son and his friend were reimbursed with funds from the joint account.

With respect to the ring, the decedent purchased it on February 5, 2010, as a replacement for a ring that Fana had given to him as a gift in late 2009 for his birthday and Christmas. The decedent told Fana that he wanted to exchange the ring she gave him for a larger ring. She agreed but told him he would have to pay the additional cost because she could not afford more than she had already paid. The decedent exchanged the ring and received a credit of $2386; he then paid an additional $17,000 for the new three-carat diamond ring he selected for himself.

The decedent wore the watch and ring every day. Before he went to bed he took them off and put them in a pocket of one of his suits. In the two weeks before his death, the decedent was hospitalized twice. Before going to the hospital, he gave the watch and ring to Fana to put away, and she put them in her purse.

After the decedent passed away, the personal representative, William P. Con-nell, who is the decedent’s son, filed a verified petition for formal administration of the decedent’s estate. The trial court admitted the will to probate and issued letters of administration. The personal representative filed an inventory and listed the Rolex watch and diamond ring as assets of the estate. A copy of the inventory was served on Fana’s counsel.

After Fana refused to turn over the watch and ring, the personal representative filed his petition for aid in marshaling assets. The trial court conducted an evi-dentiary hearing on the petition. On May 18, 2011, the court rendered its order on the petition and determined that the watch and ring were assets of the estate. In its order the trial court stated as follows:

Items of personal property such as rings and watches do not have documentation of title. It is the finding of the Court that the Decedent purchased these items using his personal funds. The items are masculine in nature and not an item that would be used by the spouse on a daily basis. This clearly indicates his intention, consistent with his actions, to use these items of jewelry for his personal benefit. The evidence does not support Fana Connell’s claim that the Decedent had donative intent when he gave her the two items of jewelry immediately prior to his final hospitalization. The pattern established by the parties was for her to retain the items for safe keeping to prevent their disappearing in the hospital. There is no doubt, had he returned from this hospitalization that he would have again resumed using both the ring and watch.

On Fana’s timely motion for rehearing, the trial court conducted a hearing at which no new evidence was presented. Instead, Fana’s counsel argued that the watch and ring should be considered joint property because they were purchased with funds from the Connells’ joint account and based on the language in the Antenup-tial Agreement. In announcing its ruling, the trial court indicated that it remained unconvinced that the decedent made a gift of the watch and ring to Fana prior to his death. But the court believed that

the District Court would find that the property was acquired during the marriage as jointly-held property based upon the source of the funds. While there’s no doubt that the watch and rings were personal to the decedent, I think under a strained reading of the prenuptial agreement that they did treat it as jointly-acquired property and I think I’m forced to rule that way. I would be delighted if the District Court saw it differently, but I just don’t think they would.

Accordingly, on July 21, 2011, the trial court rendered its order granting Fana’s motion for rehearing and modifying in part the original order by ruling that the watch and ring were the sole property of Fana. The personal representative timely filed his notice of appeal from the order on rehearing.

The trial court’s determination that the decedent did not make a gift of the watch and ring to Fana is not at issue on appeal. The trial court made a factual determination in the original order to the effect that the decedent’s delivery of the watch and ring to Fana prior to his hospitalization was not made with the intention of gifting the property to her, but rather it was a temporary delivery for the purpose of safekeeping while he was in the hospital. The trial court did not change this ruling on rehearing. The only issue on appeal is whether the decedent individually owned the watch and ring or whether the Con-nells jointly owned the watch and ring such that it passed to Fana by right of survivorship.

Our review of questions of law, including those of contract construction, is de novo. See Bosem v. Musa Holdings, Inc., 46 So.3d 42, 44 (Fla.2010); Murley v. Wiedamann, 25 So.3d 27, 29 (Fla. 2d DCA 2009). Although the review of a trial court’s factual findings is for whether competent, substantial evidence supports the findings, the review of the application of the law to the facts is de novo. See Tampa HCP, LLC v. Bachor, 72 So.3d 323, 326 (Fla. 2d DCA 2011). The personal representative correctly argues that the trial court committed an error of law in determining that the Connells jointly owned the watch and ring because they were purchased with joint funds and were “jointly acquired.”

It is undisputed that the joint checking account was a joint tenancy with a right of survivorship, not a tenancy by the entireties. When a joint account holder withdraws funds from a bank account that is held as a joint tenancy with the right of survivorship, it “terminates the ‘joint tenancy nature of the [funds] and severs the right of survivorship as to the funds withdrawn.’ ” Wexler v. Rich, 80 So.3d 1097, 1100 (Fla. 4th DCA 2012) (quoting Sitomer v. Orlan ex rel. Sitomer, 660 So.2d 1111, 1114 (Fla. 4th DCA 1995) (alteration in Sitomer)). When a joint tenant conveys an interest to a stranger, it “destroys the unities of possession and title.” Sitomer, 660 So.2d at 1114. We also note that Fana consented to the withdrawal of the funds for the jewelry purchases, so the decedent was not liable to her for her share of the joint account. See Nationsbank, N.A. v. Coastal Utils., Inc., 814 So.2d 1227, 1230 (Fla. 4th DCA 2002) (stating that “the withdrawing joint tenant is liable to the joint owner for that person’s share of the withdrawn funds”). Thus, once the funds were withdrawn from the Connells’ joint checking account, the funds lost their joint character.

Moreover, the fact that the decedent purchased the watch and ring with funds from the joint checking account (and a small contribution of cash from Fana) while they were shopping together does not make the watch and ring the joint property of the Connells. Rather, it is for whom the watch and ring were purchased rather than how they were purchased that is important. Paragraph 3.2 of the Ante-nuptial Agreement allowed the decedent to acquire separate property after the marriage. Except for the marital home, paragraph 5.3 allowed him, on death, to dispose of property that was not jointly owned. Paragraph 4.2 provided that “any property other than a marital home hereafter acquired jointly or in their joint names shall become and be considered the joint property of the parties.” Fana seems to equate the term “acquired jointly” with her being “involved” in the purchases that were made when they were together at the jewelry stores. However, the circumstances reveal that she was merely assisting the decedent buy a watch and ring for himself, not that they intended to jointly own the jewelry.

A joint tenancy has the characteristic of survivorship and to create a joint tenancy four unities must be present: the unities of possession, interest, title, and time. Beal Bank, SSB v. Almand & Assocs., 780 So.2d 45, 53 (Fla.2001). The unity of possession is joint ownership and control. Id. at 52. Here, the unity of possession was not present in either the watch or the ring. The watch and ring were intended for the decedent’s exclusive use. The decedent had been in the jewelry business, and he enjoyed expensive jewelry. He had the possession and use of the watch and ring. In fact, the trial court even made the oral finding on rehearing that the items were “personal to the decedent.”

Furthermore, the watch and ring were jewelry items designed for a man. Fana never wore or used the watch and ring. And she referred to the items as “his” jewelry. When the decedent was not wearing the watch and ring, he put them in the pocket of one of his suits. Fana only took possession to store them for safekeeping before the decedent went to the hospital. The trial court found in its original order that if the decedent had returned from the hospital, “he would have again resumed using both the ring and watch.” In the original order the trial court also determined that the circumstances indicated the decedent’s “intention, consistent with his actions, to use these items of jewelry for his personal benefit.”

The circumstances here failed to show the unity of possession as to Fana with respect to the watch and ring. Therefore, the watch and ring were the separate property of the decedent. The trial court made the correct determination in its original order; accordingly, we reverse the order on rehearing.

Order on rehearing reversed.

KELLY, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.