author: WALLACE, Judge. ALTENBERND, Judge,

text:
    In the Interest of C.N., M.N., and D.N., children. M.N., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D10-2086.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.

      Norman A. Palumbo, Jr., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David J. Lopez, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   WALLACE, Judge.

M.N. (the Father) appeals the trial court’s order terminating his parental rights to his three children, C.N., M.N., and D.N., based on the material breach of a case plan under section 39.806(l)(e)(2), Florida Statutes (2008). The Father breached case plan tasks requiring him to commit no further law violations and to avoid further involvement in crimes of violence. Although the Father was imprisoned for four years, the Department of Children and Family Services (DCF) did not seek to terminate the Father’s parental rights under section 39.806(l)(d) relating to parents who are incarcerated.

We are asked to decide whether the commission of no new law violations constitutes a valid case plan task and may support termination of the Father’s parental rights when his imprisonment resulting from a new law violation made it impossible for him to complete his other case plan tasks within the allotted time. We conclude that the statutory scheme for the termination of parental rights makes section 39.806(l)(d) the exclusive method for the termination of parental rights based on the fact of a parent’s incarceration. In addition, the Father did not commit any of the crimes for which the termination of parental rights is authorized under subsections 39.806(l)(g) and (l)(h). For these reasons, we reverse the circuit court’s order and remand for further proceedings.

I. THE FACTS AND PROCEDURAL BACKGROUND

The children were sheltered on February 28, 2009. On that date, C.N. was four years old, M.N. was two, and D.N. was four months. DCF alleged in its probable cause affidavit that the parents were incarcerated and the children were left without a caregiver. The Father was subsequently released from jail, but the children’s mother remained incarcerated. DCF filed a petition for dependency on April 13, 2009. The Father consented by default, and a case plan was approved on April 22, 2009.

The Father had been arrested at least twelve times since 2002 for such crimes as battery, firing a weapon into a building, aggravated assault, burglary, and resisting arrest. The case plan noted that the Father had an extensive history of violent crime and domestic violence. The case plan tasks assigned to the Father included (1) no further law violations; (2) no further involvement in crimes of violence; (3) a domestic violence assessment and completion of a domestic violence program; (4) anger management assessment and class; (5) substance abuse evaluation and treatment, if ordered; (6) financial stability; and (7) stable housing for six months prior to reunification. The target date for completion of the case plan was January 4, 2010.

The Father promptly began taking steps to comply with his case plan. He obtained referrals and went to the necessary evaluations. The substance abuse evaluation resulted in a recommendation of no treatment. As a result of the anger management and domestic abuse evaluation, the Father was required to attend a domestic violence program. He began the program, but he did not complete it because he was arrested for the commission of a new crime. The Father claims that he maintained stable employment. But the Father’s compliance with this case plan task was disputed at trial because he offered no evidence — other than his own testimony— that he actually had stable employment. The Father’s case manager testified that she had made several requests for pay stubs but that the Father had never complied. The case manager also testified that the Father had never provided her with evidence that he had obtained stable housing, although he insisted that he did have stable housing. The case manager had never visited the Father’s stated residence because it was in a high-crime area.

In June 2009, the Father was arrested again for contributing to the delinquency of a minor, aggravated assault with a deadly weapon, and aggravated battery on a pregnant woman. He was convicted on the latter two charges and sentenced to four years in prison. The State apparently dropped the charge of contributing to the delinquency of a minor.

On September 2, 2009, DCF filed a petition seeking the termination of the Father’s parental rights. DCF alleged that the Father’s new crimes and resulting imprisonment constituted a material breach of his case plan, “making it unlikely that he will be able to substantially comply with his case plan within the one-year period mandated by the Florida Legislature.”, The trial court agreed. In its order, the trial court made the following finding of fact:

At the time of the [F]ather’s incarceration, he was not substantially compliant with his case plan. The court notes that the [Fjather’s case plan contains two tasks that address no further law violations: the no further law violations task and the no further involvement in crimes of violence. The Father has failed to comply with both of these tasks and now finds himself in prison until late 2012 or early 2013. The [FJather is unable to complete his case plan in prison.

Based on this finding, the trial court concluded that grounds existed for termination of the Father’s parental rights based on noncompliance with his case plan tasks:

Pursuant to Florida Statute 39.806(l)(e)(2) (2009), the child has been adjudicated dependent, a case plan has been filed with the Court, and the [FJa-ther has materially breached the case plan by making it unlikely that he will be able to substantially comply with the case plan before the time for compliance expires. The [Fjather’s failure to substantially comply was not due to either the lack of financial resources of the [FJather or to the failure of [DCFJ to make reasonable efforts to reunify the [FJather and children].

Thus the trial court granted DCF’s petition and terminated the Father’s parental rights to his three children. This appeal followed.

II. DISCUSSION

A. Incarceration Under Section 39.806(1) (d)

Section 39.806(l)(d) establishes three separate grounds upon which a court may terminate the parental rights of a parent incarcerated in a state or federal correctional institution:

1. The period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years;
2. The incarcerated parent has been determined ... to be a violent career criminal as defined in s. 775.084, a habitual violent felony offender as defined in s. 775.084, or a sexual predator as defined in s. 775.21; has been convicted of first[-Jdegree or seeond[-]degree murder in violation of s. 782.04 or a sexual battery that constitutes a capital, life, or first[-]degree felony violation of s. 794.011; or has been convicted of an offense in another jurisdiction which is substantially similar to one of the offenses listed in this paragraph....
3. The court determines by clear and convincing evidence that continuing the parental relationship ... would be harmful to the child and ... that termination of the parental rights of the incarcerated parent is in the best interest of the child.

In the Father’s case, none of the three grounds relating to incarcerated parents applies. First, the Father will be incarcerated for no more than four years. With gain time, he may be released from prison as early as September 2012. The oldest of the three children will only be eight years old at that time, leaving more than ten years before the oldest child reaches the age of eighteen. Under these circumstances, the trial court could not terminate the Father’s parental rights on the statutory ground that the period of his incarceration would constitute a substantial portion of the children’s lives. See B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1052 (Fla.2004). Second, the Father does not qualify as a violent career criminal, a habitual violent felony offender, or a sexual predator, and he has not been convicted of first- or second-degree murder or sexual battery. Third, the trial court did not find that continuing the parental relationship with the Father would be harmful to the children. So the termination of the Father’s parental rights because of his incarceration under section 39.806(l)(d) was not an option. Perhaps for this reason, DCF did not rely on section 39.806(l)(d) in its petition for the termination of the Father’s parental rights.

The trial court emphasized that the basis for its findings under section 39.806(l)(e)(2) was the Father’s commission of a new violent crime, not the resulting incarceration. The Father acknowledges this fact in his brief, but he argues that the trial court inappropriately considered the length of the incarceration as a factor. In fact, the trial court did consider the length of the Father’s incarceration to be an issue in the case. At the hearing, the trial court pointedly noted that by the time of the Father’s release, he would have been incarcerated for over half of the oldest child’s life and for almost the entirety of the younger two children’s lives. Nevertheless, the trial court grounded its decision to grant the petition on a material breach of the case plan, not the length of the Father’s incarceration.

B. The Material Breach of a Case Plan Under Section 39.806(1) (e)(2)

The inapplicability of section 39.806(1)(d) brings us to the issue of whether the Father’s parental rights could properly be terminated for material breach of his case plan under section 39.806(1)(e)(2). In the few months between his release from jail and his rearrest for the aggravated battery, the Father was actively taking steps to comply with his case plan. Thus the Father’s appeal poses two closely related questions: First, may a case plan contain as a specific task that a parent commit no violation of the law? Second, if so, and a parent commits a law violation resulting in imprisonment and a consequent inability to complete the case plan, may a court terminate the parent’s parental rights based on a material breach of the case plan for this reason alone? We turn now to an examination of these questions.

When a child has been adjudicated dependent and a case plan has been filed with the court, section 39.806(1)(e) permits a court to terminate a parent’s parental rights in two separate circumstances. First, under section 39.806(1)(e)(1), a court may terminate a parent’s parental rights if the child continues to be abused, neglected, or abandoned by the parent or parents. The failure to comply with a case plan within the allotted time constitutes evidence of continuing abuse, neglect, or abandonment:

The failure of the parent or parents to substantially comply with the case plan for a period of 9 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child.

Id. Second, under section 39.806(1)(e)(2), a court may terminate a parent’s parental rights for a material breach of the case plan. Under the statute, in order to prove a material breach of the case plan, “the court must find by clear and convincing evidence that the parent or parents are unlikely or unable to substantially comply with the case plan before time to comply with the case plan expires.” Id.

C. The Father’s Progress on His Case Plan

In this case, DCF and the trial court relied on section 39.806(1)(e)(2) relating to a material breach of the case plan as the ground for the termination of the Father’s parental rights. The Father’s case plan had been in effect for, at most, three months when he was rearrested. Before the arrest, the Father was in compliance. The case manager testified that the Father had been making progress on his case plan up to the time that he was rearrested. She also commented with approval concerning the Father’s supervised visits with his children.

After the Father went to prison, he was unable to make any further progress on his case plan. Nevertheless, the Father wrote to the case manager frequently. He explained that he was attempting to get services while he was in prison but that the appropriate services were not available at the facility where he was confined. The Father also advised the case manager that he might be eligible for a transfer to a different facility where the necessary services would be available but that obtaining such a transfer could take up to one year. The Father also regularly wrote letters to his children.

D. The No-Neio-Laiv-Violation Requirement as a Case Plan Task

The insertion of a task into a case plan requiring no new law violations or violations of probation or community control is not novel; but such tasks are not in general use either. Several reported Florida decisions mention the presence of such tasks in a case plan. See, e.g., M.A.L. v. Dep’t of Children & Family Servs., 812 So.2d 447, 447-48 (Fla. 2d DCA 2002) (noting that the parent’s case plan required him to have no new law violations and to comply with all terms of his probation); B.B. v. Dep’t of Children & Families, 13 So.3d 183, 185 (Fla. 5th DCA 2009) (affirming termination of parental rights where the parent “failed to substantially comply with [the case plan’s] terms by failing to follow through with substance abuse treatment, failing to maintain appropriate housing and employment, being convicted of several new law violations during the pendency of the proceeding, and testing positive for drugs”); T.C. v. Dep’t of Children & Families, 961 So.2d 1060, 1061-62 (Fla. 4th DCA 2007) (citing new law violations and violations of probation as contributing factors supporting a finding that a parent had materially breached her case plan); K.J. v. Dep’t of Children & Family Servs., 906 So.2d 1183, 1184 (Fla. 4th DCA 2005) (noting that the case plan included a task requiring the parent to refrain from committing new law violations and comply with the terms of her probation but concluding that DCF had failed to establish by clear and convincing evidence that the parent had failed to substantially comply with the case plan).

Here, the specific tasks requiring no new law violations and no involvement in crimes of violence were incorporated into the Father’s case plan because of his history of violent acts and domestic violence. So one might view these case plan tasks— at least in part — as an attempt to protect the children from being left again without a caretaker as a result of subsequent incarcerations. The case manager offered the following explanation for the insertion of these tasks into the case plan:

The reason was [that] ... the children were brought into shelter due to the domestic violence and then also after looking at his background history with his involvement in ... violent crimes. We put that specific task in there because it was such an issue in his history.

Drawing on the case manager’s perspective, the attorney for the GAL argued in favor of termination of the Father’s parental rights based on his breach of these case plan tasks as follows: “[T]he material breach ... which the [F]ather committed by the subsequent offense ... [was] that he fundamentally failed to rectify the circumstances which caused the children to become dependent in the first place.... ”

E. The Problem: A Collision of Conflicting Concepts

The problem posed by the Father’s case stems from a collision of conflicting concepts. Such a collision is likely to occur in this context when the circuit court assigns a requirement to have no new law violations or to comply with the terms of probation or community control as a case plan task and the parent commits a new crime or violates probation or community control, resulting in his or her incarceration. On the one hand, a parent’s failure to comply with a case plan within the allotted time constitutes evidence of continuing abuse, neglect, and abandonment. § 39.806(1)(e)(1). On the other hand, incarceration alone is not a ground for the termination of parental rights. See § 39.806(1)(d); V.M. v. Dep’t of Children & Families, 922 So.2d 1085, 1087 (Fla. 4th DCA 2006) (“[P]arental rights should not be terminated merely because of the Father’s criminal history and incarceration history, without more.”); P.S. v. Dep’t of Children & Family Servs., 863 So.2d 392, 394 (Fla. 3d DCA 2003). And it is improper to terminate parental rights for case plan noncompliance when the parent’s incarceration renders the parent unable to comply. See W.L. v. Dep’t of Children & Family Servs., 15 So.3d 866, 869 (Fla. 2d DCA 2009); T.H. v. Dep’t of Children & Family Servs., 979 So.2d 1075, 1083 (Fla. 2d DCA 2008); Hutson v. State, 687 So.2d 924, 926 (Fla. 2d DCA 1997).

One might argue that when a circuit court terminates parental rights for the breach of a case plan task requiring no new law violations or compliance with the terms of probation or community control, the parent’s incarceration is unrelated to noncompliance with the case plan task. The parent has breached the case plan; incarceration is only a collateral consequence. But this rather abstract view of the matter ignores the opposing principle that parental rights may not be terminated for case plan noncompliance if incarceration is the cause of the parent’s inability to comply with the case plan.

F. The J.R. and K.J. Decisions

The parties have not directed our attention to a reported decision that squarely addresses the question presented here, and our independent research has not found such a case either. However, this court’s relatively recent decision in J.R. v. Department of Children & Family Services, 923 So.2d 1201 (Fla. 2d DCA 2006), warrants examination. The Father relied on the J.R. decision in the trial court.

In J.R., the parent’s case plan included a case plan task requiring him to follow all conditions of his probation. Id. at 1204. The parent in J.R, like the Father in this case, began to take steps to comply with his case plan, but then he committed a new law violation. Id. at 1205. In J.R, the new law violation that the parent committed was a burglary. Id. Of course, the burglary was a violation of the parent’s probation, and he was sent to prison for a five-year term. Id. The only case plan task that the parent failed to complete was the requirement that he have no new law violations. Id. On a termination petition filed by DCF, the trial court terminated the parent’s parental rights to his then three-year-old son on four grounds: (1) abandonment, § 39.806(l)(b); (2) continuing involvement of the parent in the parent-child relationship threatening the child irrespective of the provision of services, § 39.806(l)(c); (3) continuing the parental relationship with the incarcerated parent would be harmful to the child, § 39.806(l)(d)(3); and (4) case plan noncompliance, § 39.806(l)(e). 923 So.2d at 1205.

On appeal, this court disapproved the termination of parental rights on all four grounds. Id. at 1208. With regard to case plan noncompliance under section 39.806(l)(e), this court noted that the parent was in substantial compliance with his case plan until his arrest and incarceration. Id. Even after the parent was arrested, he maintained regular written communication with his son. Id. So the facts in J.R. are very similar to the facts in this case.

But in addressing the issue arising from the parent’s noncompliance with his case plan task of avoiding new law violations, the J.R. court did not directly address the issue presented here, stating as follows:

At the present time, [the parent] has been unable to comply with the remainder of his case plan or to provide for the child’s material needs. However, this is not due to lack of interest or neglect, but because of his incarceration, and therefore, this ground does not support termination. See Hutson v. State (In re E.L.H.), 687 So.2d 924 (Fla. 2d DCA 1997) (holding that the trial court improperly based termination of the father’s parental rights on the father’s failure to comply with his case plan since the father did not have the ability, due to his incarceration, to comply).

Id. The Fourth District reached a similar conclusion in K.J., 906 So.2d 1183. In K.J., the case plan included a task requiring K.J. to refrain from committing new law violations and to comply with the terms of her probation. Like this court in J.R., the Fourth District reached its conclusion in K.J. without addressing the precise issue raised in this case:

In T.M. v. Department of Children and Families, 905 So.2d 993 (Fla. 4th DCA 2005), we recently held that an incarcerated father’s parental rights could not be terminated for failure to comply with his case plan absent a showing that the department made reasonable efforts to assist the father in securing the type of services he would need to substantially comply with his case plan while in prison.
Although the evidence in this case showed that the mother failed to successfully complete the drug program at CRC, the department fell short of establishing by clear and convincing evidence that the mother failed to substantially comply with her case plan. The unre-butted evidence shows that the mother made significant progress towards the goal of drug rehabilitation and demonstrated her amenability to treatment by remaining drug-free during and after her treatment at CRC. Further, there is no evidence that the mother had the opportunity to obtain drug treatment comparable to that provided by CRC while she was incarcerated. Parental rights may not be terminated for lack of compliance where compliance is not possible.
Moreover, from this record, we cannot say that the mother’s ability to fully perform her case plan obligations was not affected by the department’s failure to assist her with achieving her goal. Termination of parental rights is not proper if the parent’s ability to comply was affected by the department’s failure to provide reasonable assistance.

Id. at 1186 (citation omitted). Thus neither J.R. nor K.J. address the issue presented here.

As the J.R. court and the KJ. court recognized, a parent’s incarceration alone does not constitute abuse, neglect, or abandonment. Incarceration is merely a factor that the circuit court may consider in determining whether a child has been abandoned. T.H., 979 So.2d at 1080. But the question here is whether the no-new-law-violations requirement may properly be included as a task in the case plan. Unfortunately, none of the appellate opinions in which a case plan task of no new law violations is mentioned shed light on this question.

G. The No-New-Law-Violation Requirement Is Not a Permissible Case Plan Task

We conclude that a requirement that a parent commit no new law violations or that the parent comply with the terms and conditions of probation or community control may not properly be included as a case plan task. The breach of such a task that results in the parent’s incarceration is not — standing alone — a proper ground for the termination of parental rights. The design of section 39.806 compels this conclusion.

Section 39.806 sets forth a comprehensive and detailed list of twelve separate grounds for the termination of parental rights. Under the statute, a parent’s mere commission of a crime is not a ground for the termination of parental rights. The omission of such a ground from the statute is in accord with common sense. A parent’s commission of a crime is not directly correlated with poor parenting skills or risk to the child; a person who commits a crime may still be an excellent parent. It all depends on the nature of the crime. A parent’s commission of some crimes, e.g., aggravated child abuse, obviously warrants intervention to protect the affected child or children. But the commission of many other crimes may have little to do with the offender’s effectiveness as a parent or with the child’s welfare.

The scheme of section 39.806 controls and limits the crimes for which a circuit court may terminate the offender’s parental rights. As we have seen, under section 39.806(l)(d)(2), a circuit court may terminate the parental rights of an incarcerated parent who qualifies as a violent career criminal, as a habitual violent felony offender, or as a sexual predator. And a circuit court may terminate the parental rights of an incarcerated parent who has committed a first-degree murder, a second-degree murder, or a sexual battery that constitutes a capital, life, or first-degree felony. Id. A parent’s commission of aggravated child abuse or sexual battery on a child constitutes grounds for the termination of parental rights without regard to whether the parent is incarcerated. § 39.806(l)(g). Finally, under section 39.806(l)(h), a circuit court may terminate parental rights without regard to incarceration when “[t]he parent or parents have committed the murder, manslaughter, aiding or abetting the murder, or conspiracy or solicitation to murder the other parent or another child, or a felony battery that resulted in serious bodily injury to the child or to another child.”

This review of section 39.806 demonstrates that the statute establishes multiple grounds for the termination of parental rights based either on the parent’s status as a recidivist or a sexual predator, or on the parent’s commission of certain specifically designated crimes. So a proper interpretation of the statute cannot authorize its expansion to include all criminal conduct as a ground for the termination of parental rights. “When a statute enumerates the things upon which it is to operate, it should be construed as excluding from its operation things of the same class or category which it does not mention.” Mingo v. ARA Health Servs., Inc., 638 So.2d 85, 86 (Fla. 2d DCA 1994) (citing James v. Dep’t of Corrections, 424 So.2d 826 (Fla. 1st DCA 1982)). It follows that a circuit court may not expand indefinitely the list of crimes for which the termination of parental rights is authorized in the statute by inserting a no-new-law-violation task into the case plan. To approve such a reading of section 39.806 would amount to judicial legislation that is contrary to the separation of powers that characterizes our system of government.

We recognize that several appellate opinions have affirmed the termination of a parent’s parental rights in cases involving a case plan task requiring the parent to refrain from committing new law violations. However, the terminations in those cases were supported by other breaches of the parents’ case plans under circumstances clearly more egregious than the circumstances presented in this case. But no court has yet been called upon to determine — as is the case here — whether a parent’s parental rights may be terminated primarily upon a finding that the parent breached a no-new-law-violation case plan task.

H. The Application of the Law to the Facts of this Case

In this case, the circuit court found that the Father had committed a material breach of his case plan. But the Father’s breach of the no-new-law-violation task was not sufficient to support the termination of his parental rights. With regard to the Father’s alleged breach of the task that he show stable housing and stable income, section 39.806(1)(e)(1) requires at least a nine-month period for compliance. The Father’s rearrest occurred during the third month of his case plan. So the Father did not have the benefit of the allotted nine-month period to complete his case plan. The Father’s inability to continue his efforts to complete his case plan was primarily the result of his confinement in a facility where the required services were unavailable, not from the incarceration itself. See T.H., 979 So.2d at 1080 (“[T]he parent’s efforts, or lack thereof, to assume parental duties while incarcerated must be considered in light of the limited opportunities to assume those duties while in prison.”). Under these circumstances, we conclude that DCF failed to present clear and convincing evidence necessary to support the circuit court’s finding that the Father had committed a material breach of his case plan under section 39.806(l)(e)(2). Therefore, the circuit court erred in terminating the Father’s parental rights to his three children on this ground.

III. CONCLUSION

A case plan under chapter 39 was never intended to be a form of criminal probation. Criminal probation and case plans serve entirely different purposes. The purposes of criminal probation under chapter 948 are to rehabilitate the criminal offender, to protect the public by deterring further criminal conduct, and to protect the crime victim’s rights. See Woodson v. State, 864 So.2d 512, 516 (Fla. 5th DCA 2004). A violation of probation generally results in some form of additional punishment for the offender. § 948.06, Fla. Stat. (2008). In contrast, the purposes of a case plan under chapter 39 are to establish “standards for a parent’s legitimate expectation of reconciliation with [his or] her child and for the eventual decision, if one must be made, to terminate parental rights.” Brown v. State, 444 So.2d 981, 992 (Fla. 1st DCA 1983) (referring to a “performance agreement,” the former term for a case plan). When a circuit court terminates parental rights for any reason, the result is frequently distressing for the parent. But the termination process is not punitive in nature. Rather, “[t]he goal in a termination of parental rights is to get the child in a healthy environment and, preferably, to find adoptive parents.” E.T. v. State, Dep’t of Children & Families, 930 So.2d 721, 727 (Fla. 4th DCA 2006) (quoting Cosgrove v. Kansas State Dep’t of Soc. & Rehab. Servs., 14 Kan.App.2d 217, 786 P.2d 636, 639 (1990)).

The addition of a no-new-law-violation task to a case plan grafts an alien conceptual framework onto the process for dependency and termination of parental rights under chapter 39. Indeed, the increasing use of the no-new-law-violation case plan task threatens to turn the dependency process into a form of criminal probation. Turning the dependency process into a form of criminal probation is not in keeping with either the letter or the spirit of chapter 39. A parent’s criminal history and incarceration history is irrelevant to the decision to terminate parental rights, except as specifically provided in the statute. See V.M., 922 So.2d at 1087.

Here, the Father’s criminal history and incarceration history did not constitute grounds for the termination of the Father’s parental rights under section 39.806. DCF failed to prove by clear and convincing evidence that the Father had materially breached his case plan. Accordingly, we reverse the order terminating the Father’s parental rights and remand this case for further proceedings.

Reversed and remanded.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in Judge Wallace’s thoughtful decision. I write only to note that the “no new law violation” task in a case plan seems to be a response to the supreme court’s decision in B.C. v. Florida Department of Children & Families, 887 So.2d 1046 (Fla.2004). With all due respect to the supreme court, I believe the analysis in B.C. is unlikely to reflect the intent of the legislature and that the legislature should revisit section 39.806(1)(d)(1), Florida Statutes (2010), to determine whether it should clarify the statute.

Section 39.806(1)(d)(1) allows a termination when a parent is “expected to be incarcerated” for “a substantial portion of the period of time before the child will attain the age of 18 years.” In B.C., the supreme court relied purely on a linear mathematical formula to determine whether the percentage of the child’s minority was substantial. 887 So.2d at 1054. It is quite obvious to anyone who has watched a child’s mind develop that child development is not a matter of linear mathematics. In this case, the children have not seen the Father since July 2009, when he was out of prison for a few months and they were five years old, three years old, and one year old, respectively. Assuming that he is control released in 2012, the children will be 8⅜ and 4. They will have lived in a foster home for essentially their entire lives. Especially for the two older children, I find it hard to accept from the perspective of child development that the Father will not have been incarcerated for a “substantial portion” of their childhood by 2012.

This case is perhaps the worst case scenario because there is no mother on the outside waiting patiently for the Father’s release from prison. She is serving a longer prison sentence and has had the wisdom to allow these children to be placed for adoption in a permanent home. I recognize that the termination of a parent’s rights to a child implicates a fundamental liberty interest of the parent under existing case law, but it seems to me that, at some point, children ought to have a fundamental right to a safe, secure, and permanent home. In this case, there is little question that we are providing the Father with his constitutional rights at the expense of the children. An improved statute might allow us to avoid such outcomes in the future.

      . The children's mother, who is serving a lengthy sentence in the federal prison system, has not appealed the order terminating her parental rights.

      . DCF's reference to "the one-year period” is inaccurate, but it does not affect our analysis. The case plan was correctly established under the recently revised statute, which shortened the period for compliance from one year to nine months. See § 39.806(1)(e)(1); ch. 2008-245, §§ 16, 32, at 2941-42, 2950, Laws of Fla. (effective July 1, 2008).

      . The petition cites the Father’s convictions for aggravated assault with a deadly weapon and aggravated battery on a pregnant woman as the grounds for the Father’s alleged noncompliance with the case plan. But the date of the aggravated assault offense predated the case plan. The aggravated battery offense occurred on May 25, 2009, after the case plan was in effect. Thus the only new law violation that occurred during the pendency of the case plan was the aggravated battery offense. The trial court’s order appears to implicitly recognize this fact by mentioning only the aggravated battery conviction in the findings.

      . The Guardian ad Litem (the GAL) took a different view. According to the GAL, there was no significant love, affection, or other emotional ties between the children and the parents. The GAL reported that the children had formed a significant relationship with the foster parents, who wished to adopt them.

      . Because we conclude that DCF failed to establish a statutory ground for termination, we do not address the trial court’s findings regarding the manifest best interests of the children or whether termination was the least restrictive means of protecting the children from harm. See Rathburn v. Dep't of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002) ("There is a two[-]step process inherent in the statutory scheme for termination of parental rights, pursuant to chapter 39. First, the trial court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes (2001)[,] has been established. Second, the trial court shall consider the manifest best interests of the child...."); V.W. v. Dep’t of Children Family Servs., 863 So.2d 480, 483 (Fla. 2d DCA 2004) ("Beyond these statutory requirements, the termination of parental rights is subject to a constitutional requirement: ‘[B]ecause parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm.’ " (quoting Padgett v. Dep't of Health Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991)).


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Charles S. FALLER, III, as trustee, Appellant, v. Charles S. FALLER, Jr., Appellee.
    No. 2D10-1930.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.

      Robert W. Goldman of Goldman Felco-ski & Stone, P.A., Naples, for Appellant.
    Gerald W. Pierce of Gerald W. Pierce, P.A., and C. Berk Edwards of Geraghty, Dougherty & Edwards, P.A., Fort Myers, for Appellee.
   LaROSE, Judge.

A family squabble brings this case to us. Charles Faller, III, appeals a nonfinal order denying his motion to dismiss his parents’ and siblings’ lawsuit seeking to oust him as trustee of several family trusts. Mr. Faller, a Maryland resident, filed a motion to dismiss the complaint for lack of personal jurisdiction and improper venue. In the motion, he also sought a stay, based on comity, because of a similar lawsuit pending in Maryland federal court. See Faller v. Faller, No. DKC 09-0889, 2010 WL 1141202 (D.Md. March 22, 2010).

At the initial hearing on the motion, the parties recognized that there was insufficient time to address all issues. Mr. Faller asked and the trial court agreed to hear the stay argument first. The trial court denied Mr. Faller’s request for a stay. Twenty days later, the trial court reconvened and heard Mr. Faller’s personal jurisdiction arguments. The trial court ruled that Mr. Faller waived his personal jurisdiction defense by requesting a stay at the first hearing. Mr. Faller appeals. We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(i). We review the trial court’s application of law to undisputed facts de novo. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010). We reverse.

Mr. Faller waived his personal jurisdiction defense only if he sought affirmative relief from the trial court. See Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998). “[A]ffirmative relief [is] ‘[r]e-lief for which defendant might maintain an action independently of plaintiffs claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it.’ ” Heineken v. Heineken, 683 So.2d 194, 197 (Fla. 1st DCA 1996) (quoting Grange Ins. Assn. v. State, 110 Wash.2d 752, 757 P.2d 933, 940 (1988) (en banc) (quoting Black’s Law Dictionary 56 (5th ed. 1979))). But, defending the case does not waive personal jurisdiction. Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002) (“[S]o long as the defending party makes a timely objection to personal jurisdiction, the defendant may defend the case without waiving the objection.”); Heineken, 683 So.2d at 197 (stating that defensive actions do not constitute requests for affirmative relief inconsistent with initial defense of lack of jurisdiction). Mr. Faller’s request for a stay was defensive.

The trial court reasoned that a stay request necessarily seeks affirmative relief because it is not a listed defense in Florida Rule of Civil Procedure 1.140(b). Acknowledging the supreme court’s holding in Florida Department of Children and Families v. Sun-Sentinel, Inc., 865 So.2d 1278, 1284 (Fla.2004), that a defendant did not waive his objection to personal jurisdiction by seeking a change of venue, the trial court observed that venue is listed in rule 1.140(b). Rule 1.140(b), however, is not an exhaustive list of possible defenses. Rather, the rule, in part, identifies seven defenses that a defendant may raise by motion before pleading. The rule also permits the joinder of defenses. Sun-Sentinel does not support the trial court’s ruling.

Florida courts have recognized various defenses that, when raised, do not waive personal jurisdiction. See, e.g., Babcock, 707 So.2d at 704 (motion for relief from monetary judgments for child support ar-rearages); Banco de Costa Rica v. Rodriguez, 573 So.2d 833, 834 (Fla.1991) (motion to quash a deposition subpoena); Two Worlds United v. Zylstra, 46 So.3d 1175 (Fla. 2d DCA 2010) (motion for section 57.105 attorney’s fees); Berne, 819 So.2d at 237 (answer and motions to dismiss and for summary judgment); Heineken, 683 So.2d at 197 (request in motion to dismiss that trial court order spouse to pay attorney’s fees incurred in prosecuting the motion); Parker v. George S. Heilpern, Trust, 637 So.2d 295, 296 (Fla. 4th DCA 1994) (objection to codefendant’s motion to share in foreclosure proceeds); Oy v. Carnival Cruise Lines, Inc., 632 So.2d 724, 725 (Fla. 3d DCA 1994) (motion for protective order); Permenter v. Feurtado, 541 So.2d 1331, 1331 (Fla. 3d DCA 1989) (motion to stay litigation pending appeal of denial of motion to vacate default and quash service); Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So.2d 794, 795-96 (Fla. 4th DCA 1987) (answer and compulsory counterclaim).

The trial court also based its ruling on a misinterpretation of Sprint Corp. v. Telimagine, Inc., 923 So.2d 525 (Fla. 2d DCA 2005). Apparently, the trial court saw Sprint as holding that any request for a stay was a request for affirmative relief. This goes too far. Sprint’s request essentially sought to enforce an arbitration agreement. Id. at 528. Sprint was not only asking to stay proceedings but to enforce what it believed to be its contractual right to have the case decided on the merits in arbitration.

Mr. Faller did not ask the court to enforce any contractual or statutory right to which he claimed entitlement. He sought but “a time out” by the trial court so that already-pending litigation in Maryland could be concluded. He combined his personal jurisdiction objection with his stay request in his motion to dismiss. See Fla. R. Civ. P. 1.140(b) (“No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.”). The vagaries of scheduling precluded both grounds to be argued at the same initial hearing. The request for a stay was defensive, raised in the same motion as the personal jurisdiction defense, and was akin to the situations in the cases cited above where our courts have found no waiver of the personal jurisdiction defense.

Reversed and remanded for further proceedings.

CASANUEVA, C.J., and CRENSHAW, J., Concur.

      . Rule 1.140(b) provides, as relevant here, as follows:
      Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties.... No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.


author: NORTHCUTT, Judge.

text:
    Michelle ROWE f/k/a Michelle Borysek-Rodriguez, Appellant, v. Jose A. RODRIGUEZ-SCHMIDT, Appellee.
    No. 2D10-487.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 2011.
    Victor R. Smith and Sergiu Gherman of Frost Van Den Boom & Smith, P.A., Bar-tow, for Appellant.
    C. Nathaniel White, Bartow, for Appel-lee.
   NORTHCUTT, Judge.

Jose Rodriguez-Schmidt filed a postdis-solution petition seeking to reduce the child support he pays Michelle Rowe and to modify his obligation to pay the unreim-bursed medical expenses of the parties’ child. The circuit court granted the petition, and Ms. Rowe has appealed on numerous grounds. We affirm without discussion on all her points save one.

We reverse the circuit court’s determination that each party should be responsible for half of the child’s unreimbursed medical expenses. If such noncovered expenses are not factored into the child support guidelines calculation, and they were not in this case, responsibility for the expenses should be apportioned based on the parties’ relative incomes. See Wilcox v. Munoz, 35 So.3d 136, 141 (Fla. 2d DCA 2010); Martinez v. Martinez, 911 So.2d 288, 289-90 (Fla. 2d DCA 2005). Mr. Rodriguez-Schmidt’s income is greater than his former wife’s. We reverse and remand with directions to recalculate the parties’ responsibility for the child’s unreimbursed medical expenses based on their relative incomes.

Affirmed in part, reversed in part, and remanded.

DAVIS and BLACK, JJ., Concur.

      . Mr. Rodriguez-Schmidt also asked the court to award him the income tax deduction for his son. The court did so, but Ms. Rowe does not challenge that decision on appeal.


author: PER CURIAM.

text:
    HOUSEHOLD FINANCE CORPORATION, III, Appellant, v. Henry Fred MITCHELL, Sr., David W. Padot, Sr., and Mary Ann Padot, his wife; any and all Unknown Parties Claiming by, Through, Under, or Against the Herein Named Individual Defendant(s) Who are Not Known to be Dead or Alive, Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees or Other Claimants; John Doe and Jane Doe as unknown tenants in possession, and Anne Barnett; United States of America; and The Riverwalk of Fanning Springs Homeowners Association, Inc., Appellees.
    Nos. 1D10-0304, 1D10-0307.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Noel Joy Vandenhouten and Elyce Schweitzer of the Law Offices of Marshall C. Watson, P.A., Fort Lauderdale; J. Cameron Story, III and Jay B. Watson of the Law Office of Cameron Story, P.A., Jacksonville, for Appellant.
    Michael S. Smith of Smith, Smith & Parker, Perry; Ronald E. Cotterill of Wetherington, Hamilton, Harrison, Fair, P.A., Tampa; Paul Alan Sprowls, United States Attorney’s Office, Tallahassee; Jennifer J. Ellison, Cross City, for Appellees.
   PER CURIAM.

We reverse the trial court’s denial of the appellant’s motion to vacate the default judgment entered against it in the foreclosure proceedings below. Because we conclude that the appellant raised one or more meritorious defenses, and because the trial court found that it met the other prerequisites for granting the motion, we reverse and remand for entry of an order vacating the default.

H.F. Mitchell, Jr. held mortgages totaling $600,000 on four pieces of property owned by David and Mary Ann Padot. These properties included a house and the parcel on which it was located (collectively “the Padot home”). Household Finance Corporation, III (“HFC”) subsequently gave a second and third mortgage on the home, for $197,000 and $45,973.24, respectively. The following year, H.F. Mitchell, Jr. assigned an assignment of his mortgage on the Padot properties to his father, H.F. Mitchell, Sr.

On July 23, 2009, after the Padots failed to make the June and July payments on the Mitchell mortgage, H.F. Mitchell, Sr. filed the instant suit to foreclose on his mortgage. He joined HFC as a defendant, based on the two junior mortgages it held on the Padot home.

When HFC filed no responsive pleading to the complaint after its registered agent was served, Mitchell moved for default, serving the agent with a copy of the motion. The court granted the motion, and the clerk mailed a copy of the default judgment to the agent. In October and November of 2009, the agent was served with copies of Mitchell’s notice for bench trial and the trial court’s orders scheduling a ease management conference and setting the case for non-jury trial on December 15, 2009.

On December 7 and 8, 2009, respectively, HFC filed an emergency motion to quash service and a motion to vacate default and continue the trial. Attached to the motion to vacate default was an affidavit of HFC employee Kathleen Sullivan, asserting that, due to improper sorting of the summons and complaint, she had not received a copy of these documents until November 11, 2009.

On December 9, 2009, HFC filed separate answers as to each of its two mortgages on the Padot home. In these answers, it denied Mitchell’s right to foreclose generally, to foreclose on only one part of the property secured by the mortgage or to unlawfully foreclose out HFC’s junior lien rights. It also asserted a counterclaim for the value of the remaining collateral and denied that HFC’s mortgages should be treated as inferior to Mitchell’s. In addition, HFC asserted six affirmative defenses as to both of the mortgages: (1) a denial that Mitchell was the possessor of the note; (2) a claim that HFC’s mortgages were superior to all others; (3) failure to state a cause of action; (4) seUoff and reduction; (5) failure to mitigate damages; and (6) estoppel/marshalling. Finally, it reserved the right to amend its answers and affirmative defenses after it had an opportunity to conduct discovery.

The trial court held a hearing on HFC’s Motion to Quash and Motion to Vacate Default and Continue Trial on December 15, 2009, prior to the start of the non-jury trial. Following the hearing, the trial court issued an order denying the motions, based on a finding that, although HFC had shown excusable neglect and due diligence, it had failed to establish a meritorious defense. It subsequently issued a Final Judgment in Foreclosure, awarding Mitchell a total of $389,093.15 in principal, interest, late charges and fees and ruling Mitchell’s lien on the property superior to the claims of HFC or any other defendant.

The trial court erred in denying HFC’s motion to vacate the default. We conclude that HFC raised at least one meritorious defense in its answer and affirmative defenses.

A party moving to set aside a default must show that the failure to file a timely responsive pleading was due to excusable neglect, that there is a meritorious defense to the claim, and that the request for relief from default was made with reasonable diligence after it was discovered. See Hunt Exterminating Co., Inc. v. Crum, 598 So.2d 113 (Fla. 2d DCA 1992); Venero v. Balbuena, 652 So.2d 1271 (Fla. 3d DCA 1995); Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304 (Fla. 4th DCA 2010). The court must deny the motion if any one of the three elements is not established. See Schwartz v. Business Cards Tomorrow, Inc., 644 So.2d 611 (Fla. 4th DCA 1994). However, it must grant the motion to set aside default if there is reasonable doubt as to whether the moving party is entitled to relief. See Viets v. American Recruiters Enterps., Inc., 922 So.2d 1090 (Fla. 4th DCA 2006).

In the context of a motion to set aside a default, “meritorious” means simply that the defendant plans to raise a defense that may have some merit. The movant need only show that the defense it has raised is meritorious, not that it is likely to succeed. See Rice v. James, 740 So.2d 7 (Fla. 1st DCA 1999). A general denial does not rise to the level of a meritorious defense. See, e.g., Rivera v. Dep’t of Revenue ex rel. Rivera, 899 So.2d 1265 (Fla. 2d DCA 2005). However, affirmative defenses, even when pled with minimal specificity, can qualify as meritorious. See, e.g., Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304 (Fla. 4th DCA 2010).

At the very least, HFC’s estoppel defense, which encompassed an assertion of marshalling, may have some merit. Specifically, the responsive pleading states,

Estoppel. The plaintiff is estopped from extinguishing the junior lienholders [sic] rights in the subject property because there is adequate property value in the remaining lots named in the Mortgage as collateral. Plaintiff seeks to unjustly and unlawfully extinguish the junior lienholders’ interests in said property to obtain said property free and clear and to profit thereby and has increased the amount necessary to redeem said property and said redemptive rights are guaranteed under Florida law.

This affirmative defense, on its face, may have some merit. While we cannot say, based on the record on appeal, whether this defense actually has any likelihood of ultimate success at trial, this is not the test. HFC has set forth a sufficient theory and allegations to meet the minimal requirements for asserting a meritorious defense. Therefore, the trial court should have granted its motion to vacate the default, thus affording it the opportunity to engage in discovery and present its defenses at trial. We reverse the order denying the motion and remand with directions to enter an order vacating the default judgment against HFC.

Reversed and remanded.

PADOVANO, HAWKES, and MARSTILLER, JJ., concur.


text:
    Charles SEVERIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2572.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.

      Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, and Kristina Duhaney of Law Offices of Kristina Duhaney, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

The court has reviewed the initial brief and affirms because “no preliminary basis for reversal has been demonstrated.” Fla. RApp. P. 9.315(a). This appeal involves a successive motion for relief under Florida Rule of Criminal Procedure 3.850(f).

Affirmed.

GROSS, C.J., MAY and LEVINE, JJ., concur.


author: RAMIREZ, C.J.

text:
    James E. TURNER, Appellants, v. FIA CARD SERVICES, N.A., etc., Appellee.
    No. 3D10-1445.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    James E. Turner, in proper person.
    Pamela Jo Bondi, Attorney General, and Ralph Sam Marcadis and Amy Winarsky, Tampa, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and CORTINAS, JJ.
   RAMIREZ, C.J.

James E. Turner appeals an order denying rehearing on the trial court’s finding of good cause why the cause should remain pending, pursuant to Florida Rule of Civil Procedure 1.420(e). Because the plaintiff, FIA Card Services, N.A., etc., failed to file a timely showing of good cause, we reverse.

It is undisputed that there was no record activity for a period of ten months immediately preceding the trial court’s issuance of a Notice of Lack of Prosecution on November 24, 2009. It is also undisputed that no record activity took place during the sixty-day period following the court’s Notice. The court refused to dismiss the action because FIA Card Services filed on February 1, 2010, a showing of good cause. The hearing on the Notice was set for February 5, 2010. Rule 1.420(e) provides that this showing of good cause must be made “at least 5 days before the hearing.” The trial court stated that the timeliness was “close enough.” We conclude that “close enough” is not “good enough.”

The Florida Supreme Court in Wilson v. Salamon, 928 So.2d 363, 368 (Fla.2005), created a bright-line rule that any filing would prevent dismissal pursuant to this rule. Likewise, any filing in the 60-day period following the notice or motion for lack of prosecution would qualify as record activity and would keep the case from being dismissed. The rule likewise specifies a bright line for providing good cause — “at least five days before the hearing.” The rule does not read more or less five days, or around five days. By filing the showing of good cause on February 1, FIA Card Services did so four days before the hearing. If this is close enough, what about February 2, three days before? We believe that, just as the Florida Supreme Court sought to impose a bright line for keeping a case from being dismissed for lack of prosecution, we should impose a bright line for showing good cause, and if the rule states “5 days,” we can require no less.

Reversed and remanded with instructions to dismiss the case without prejudice.

      . FIA Card Services alleges in its brief that "[t]he matter had stalled for a period of time.”


author: ORFINGER, J.

text:
    GE FANUC INTELLIGENT PLATFORMS EMBEDDED, etc., Appellant, v. BRIJOT IMAGING SYSTEMS, INC., Appellee.
    No. 5D10-860.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.

      Jeffrey S. York and R. Patrick Dover, of McGuireWoods LLP, Jacksonville, for Appellant.
    David B. King, Thomas A. Zehnder, and Frederick S. Wermuth, of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Ap-pellee.
   ORFINGER, J.

GE Fanuc Intelligent Platforms Embedded Systems, Inc. (n/k/a GE Intelligent Platforms Embedded Systems, Inc.) (“GE”), appeals a final summary judgment rendered in favor of Brijot Imaging Systems, Inc. (“Brijot”) in a breach of contract action. In its summary judgment, the trial court found that a release GE sent to Brijot extinguished any and all claims it had against Brijot. On appeal, GE argues that summary judgment was improvidently entered as the release was ambiguous and, in any event, was withdrawn or revoked prior to Brijot’s acceptance of it. We agree that disputed issues of material fact remain and reverse the final summary judgment.

Brijot had a contractual relationship with GE’s predecessor, SBS Technologies — Commercial & Government Products Group (“SBS”). When Brijot terminated its contract with SBS, it acknowledged that it owed SBS $865,887, which it agreed to pay at the rate of $25,000 per month. After several months, Brijot fell behind on the payments and eventually stopped paying all together.

In 2006, GE acquired SBS and sought to collect on Brijot’s unpaid account by assigning the matter to an Ohio law firm. The collection firm wrote Brijot on GE’s behalf, demanding payment in the amount of $76,968. Brijot agreed to pay that amount, in exchange for a full and complete release from GE. GE’s attorneys refused to provide the requested release. Instead, more limited release language was negotiated. Eventually, the collection firm sent Brijot an executed release, releasing Brijot “from all claims and disputes arising from an unpaid GE Fanuc account,” but further providing that the release “shall not affect any other account with GECP[] or any other claims, causes of actions, accounts, contracts, leases, or agreement which Brijot has or may have with any other division, affiliate, subsidiary, joint venture, or successor of GE Fanuc or related corporations, nor shall it affect accounts, contracts, leases, or agreements relating to any events, transactions and equipment which are not the subject of the account.” The executed release was sent with instructions, advising Brijot that “[i]n order for the release to be valid, you would need to wire the funds to either our bank or GE’s bank. You may call me for the banking information to accomplish this. OR [sic] you would need to have a certified bank check for the amount in our office no later than Friday, March 28.”

According to GE, before Brijot sent the agreed-upon sum, it realized that Brijot owed it an additional $428,919.08. GE’s attorneys immediately notified Brijot that it had discovered the additional debt and wrote that “[g]iven the new information ... we are rescinding the release document previously forwarded to you for review.” Nonetheless, the next day (or perhaps several days later), Brijot sent a check to a former SBS address in New Mexico for the previously agreed-upon $76,968 settlement. The funds were deposited to a GE account and retained. GE then sued Brijot for the $428,919.08 balance. In response, Brijot pled the affirmative defense of release and ratification, the latter pertaining to GE’s retention of Brijot’s payment while simultaneously attempting to avoid the release.

In its opposition to Brijot’s motion for summary judgment, GE contended that the release, and the $76,968 payment related to a “trade” account and that Brijot had a separate “sundries” account to which the remaining balance pertained. GE contends that because the release only pertained to “an unpaid GE Fanuc account” and not all GE accounts, the release has a latent ambiguity. We agree.

A latent ambiguity arises when the language in a contract is clear and intelligible, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two or more possible meanings. Deni Assocs. of Fla. Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139 (Fla.1998). In such an instance, the intent of the parties can be demonstrated with parol evidence. A latent ambiguity is thus brought to light when extraneous circumstances reveal “an insufficiency in the contract not apparent from the face of the document.” Hunt v. First Nat’l Bank of Tampa, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980). When a latent ambiguity affects a disputed contract provision, there necessarily will be a disputed issue of material fact. Accordingly, “[w]hen an agreement contains a latent ambiguity ... the issue of the correct interpretation of the agreement is an issue of fact which precludes summary judgment.” Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659-60 (Fla. 2d DCA 2005) (quoting Griffin v. Fed. Deposit Ins. Corp., 532 So.2d 1358, 1360 (Fla. 2d DCA 1988)).

Another material dispute exists regarding GE’s purported revocation of the release prior to Brijot’s acceptance. The trial court concluded that GE was not entitled “to the equitable remedy of rescission” because GE retained the money sent by Brijot. We do not view this matter so much as one concerning contract rescission, but rather, one of contract formation. As a general rule, an offer may be withdrawn at any time before acceptance. Once revoked, a party has no power to accept a revoked offer. Sullivan v. Econ. Research Props., 455 So.2d 630, 631 (Fla. 5th DCA 1984). The evidence viewed in the light most favorable to GE as the non-moving party suggests that its revocation notice was received by Brijot before Brijot demonstrated its acceptance by payment.

Brijot argues that even if GE revoked its offer to settle, it ratified the transaction by its delay in manifesting its intention to void the transaction and by failing to tender back to Brijot the money it had received. See Rood Co. v. Bd. of Pub. Instruction of Dade County, 102 So.2d 139, 141-42 (Fla.1958); see also 7-28 Arthur L. Corbin, Corbin on Contracts § 28.37 (2002 ed.). This argument is unpersuasive as it has no impact on the scope of the release given. Nor can we say, as a matter of law, that GE unduly delayed manifesting its intent to avoid the transaction by retaining the funds that Brijot acknowledged it owed.

For these reasons, we reverse the summary final judgment and remand this matter for trial.

REVERSED and REMANDED.

SAWAYA and JACOBUS, JJ„ concur.

      . GECP appears to be an acronym for GE Company.

      . A patent ambiguity, in contrast, appears on the face of the document and may not be resolved by the consideration of parol evidence. Crown Mgmt. Corp. v. Goodman, 452 So.2d 49, 52 (Fla. 2d DCA 1984).


author: DAVIS, Judge.

text:
    Roy VEAL, as representative of the class certified at No. 8:04-CF0-0323 (U.S.D.C.M.D.Fla.), assignees of certain rights of Crown Auto Dealerships, Inc., Appellant, v. VOYAGER PROPERTY AND CASUALTY INSURANCE COMPANY; Voyager Service Programs, Inc.; and Pro-Tec Dealer Services, Inc., Appellees.
    No. 2D09-2672.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2011.

      Daniel Clark of Clark & Martino, P.A., Tampa, and Craig E. Rothburd of Craig E. Rothburd, P.A., Tampa, and Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, and Scott R. Jeeves of Jeeves Law Group, P.A., St. Petersburg, for Appellant.
    Michael S. Hooker of Glenn Rasmussen Fogarty & Hooker, P.A., Tampa, for Ap-pellees Voyager Property and Casualty Insurance Company and Voyager Service Programs, Inc.
    No appearance for Appellee Pro-Tec Dealer Services, Inc.
   DAVIS, Judge.

Roy Veal, as representative of a certified class, challenges the trial court’s order dismissing with prejudice his indemnification action against Voyager Property & Casualty Insurance, Co.; Voyager Service Programs, Inc.; and Pro-Tec Services, Inc. (collectively “Appellees”). We affirm.

Veal was the named representative of a class certified in federal court to bring an action against Crown Auto Dealerships, Inc., for damages sustained by each class member as a result of his or her purchasing a Trac Guard vehicle antitheft product from Crown in conjunction with the purchase of a car from a Crown dealership.

The class members filed a five-count complaint against Crown in the United States District Court for the Middle District of Florida, alleging violations of the Truth in Lending Act, the Florida Motor Vehicle Retail Sales Finance Act, the Florida Deceptive and Unfair Trade Practices Act, and the Warranties Association Act. The complaint also sought restitution and damages for unjust enrichment.

The antitheft product at issue was purchased by Crown from Pro-Tech Services, Inc. Pro-Tech had represented to Crown that Voyager Property & Casualty Insurance Co. and/or Voyager Services Programs, Inc., would provide a warranty insurance policy for each Trac Guard product sold. Each warranty would guarantee the car owner a cash benefit should he or she experience the loss of his or her automobile by theft and either the car was not returned or, if returned, was a total loss. The warranty further provided that if the car was stolen and returned, the owner would receive up to $1000 to pay any deductible required by the owner’s automobile insurance policy to repair damages sustained.

During the class action litigation, Crown learned that it had been misled by Pro-Tech in that not only had no warranty policies been registered with the State of Florida, as required by statute, but also that no warranty policies even existed.

The federal class action lawsuit was resolved with Crown agreeing to a settlement involving a payment of monetary damages to the class members but no admission of liability on the part of Crown. As part of that settlement, the class members also received

a full assignment of all rights to indemnification by Crown against the following companies, including parents, affiliates, and subsidiaries, as it relates to the sale of the Trac Guard product: Pro Tech Dealer Services, Inc.[;] Voyager Group, Inc.[;] Voyager Service Programs, Inc.[;] Voyager Property & Casualty Insurance Company!;] Voyager Service Warranties, Inc.[;] and Voyager Insurance Company (collectively “Third Party Entities”).

(Emphasis added.)

Veal subsequently brought suit against Appellees in state court, alleging one count of indemnification. Although Veal never sought to have a class certified in state court, he brought this action “as representative of the class certified at No. 8:04-CV-0323 (U.S.D.C.M.D.Fla.), assignees of certain rights of Crown Auto Dealerships, Inc.” In the complaint for indemnification, Veal alleged that “in its effort to induce Crown to market and sell Pro-Tec’s anti-theft [sic] warranty product, Pro-Tec informed Crown ... that the Pro-Tec anti-theft [sic] ‘programs are insured by Voyager Insurance Companies.’ ” Veal further alleged, however, that “[a]t no time did Voyager provide insurance coverage for customer claims under the Trac Guard etch product.” Veal maintained that Voyager “willfully and intentionally participated in a scheme to share the profits from the sale of Pro-Tech’s product to Crown by misrepresenting insurance coverage to make the unregistered product more attractive to Crown and its customers.” Finally, Veal asserted that Crown had no duty to record the insurance product but rather that section 634.1216, Florida Statutes (2008), imposes that duty on Pro-Tech and Voyager.

According to the complaint, Crown relied on Pro-Tec’s assertions regarding the insurance, resulting in Crown agreeing to sell the product at its dealerships. As a result of these sales and the subsequent federal law suit, Crown paid more than $1 million to its customers for actual damages, prejudgment and postjudgment interest, costs, and attorney’s fees. Based on these facts, Veal, on behalf of the class members who were acting as Crown’s assignees, sought indemnification, arguing that since Crown had no statutory or legal duty to register Trac Guard with the Florida Department of Insurance or to file with the State the rates and premiums to be paid by its customers on the product, Crown’s liability to the class of customers was not due to any act or omission on its part. Rather, Veal maintained that those duties belonged to the insurer, Voyager, and that

[a]s a result of the deceptive activity of Pro-Tec and Voyager in failing to register the Trac Guard product ..., in failing to file its rates, and in failing to back [Trac Guard] with the reserves of a licensed insurer, Crown was required to pay to Veal and class members in the class action case their damages and costs.

As such, Veal, on behalf of the class and standing in the place of Crown, sought “indemnity for Crown’s losses against Voyager and Pro-Tec.”

In response, Voyager Property & Casualty Insurance and Voyager Service Programs (collectively “Voyager”) moved to dismiss the complaint for failure to state a claim upon which relief could be granted, arguing that Veal could not maintain a claim for common law indemnification because to do so, he would have to argue that Crown was wholly without fault. Voyager maintained that because Veal argued in the federal case that Crown was at fault, he could not argue the opposite position in state court. Voyager also argued in its motion (1) that Veal’s complaint failed to state a claim on behalf of the class members whose rights Veal sought to enforce because a class was never certified in state court and (2) that Veal failed to comply with the presuit notice requirements of section 684.433.

Following a hearing, the trial court entered an order granting Voyager’s motion, concluding that “Veal’s complaint fails to state a valid indemnity claim against Defendants.” Specifically, the court stated:

Simply put, if Crown is precluded from suing Defendants for indemnification, then Crown’s assignees are likewise barred. A review of the complaint shows that Plaintiff Veal failed to allege any conduct of the Voyager Defendants for which the assignor Crown could be held vicariously or derivatively liable. It appears that all of Plaintiffs allegations are based upon alleged direct wrongdoing by the Voyager Defendants against Crown. According to the pleadings, Crown only assigned indemnification claims. Thus, Plaintiff Veal’s complaint fails to state a valid indemnity claim against the Defendants.

“For a party to prevail on a claim of common law indemnity, the party must satisfy a two-prong test.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 642 (Fla.1999). “First, the party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another. Second, indemnification can only come from a party who was at fault.” Id. (citation omitted). Here, Veal is seeking indemnity against Voyager as if he (and the other class members) were Crown. He has alleged that Crown is wholly without fault but that based on its contractual relationship with its customers, it was forced to pay more than $1 million to its customers for the actions of Voyager. On the face of the complaint, this satisfies the two-prong test for a claim of common law indemnification.

However, Voyager attached to its motion to dismiss a copy of the settlement agreement that was accepted by the federal trial court to resolve the class action lawsuit. By the terms of that settlement agreement, the damages paid by Crown to the class members were related to the disclosure violations alleged to have occurred on the face of the sales contract between Crown and its customers. Nowhere in the settlement agreement does it state that damages were being paid by Crown for the failure to register the warranties as required by chapter 634 of the Florida Statutes or for damages incurred because no warranty policies were issued. Since there is no allegation that either Voyager or Pro-Tech was responsible for the preparation of the sales agreements, Crown would have no cause of action against them for damages paid pursuant to the settlement. Thus Crown had no indemnification claim to assign. As such, by accepting the assignment of indemnification rights, Veal and the class members did not receive a cause of action that they could pursue. This was the conclusion reached by the trial court.

Veal argues on appeal that the trial court erred by considering the contents of the settlement agreement. He correctly argues that, as a general rule, in deciding a motion to dismiss, the trial court is limited to the contents of the pleadings. See Belcher Ctr. LLC v. Belcher Ctr., Inc., 883 So.2d 338, 339 (Fla. 2d DCA 2004) (“On a motion to dismiss for failure to state a cause of action, a trial court is confined to the four corners of the complaint....”). However, in this case, the complaint refers to the settlement agreement, and in fact, Veal’s standing to bring suit is premised on the terms of that agreement. Accordingly, since the complaint impliedly incorporates the terms of the agreement by reference, the trial court was entitled to review the terms of that agreement to determine the nature of the claim being alleged. Upon such review, the trial court not only found that Veal failed to allege a claim under which indemnification could be sought, but also found that based on the settlement agreement, Crown had no indemnification rights to assign and that the dismissal should be with prejudice.

Because based on the terms of the settlement agreement, Veal cannot allege a claim of common law indemnity against Voyager as Crown’s assignee, we affirm the trial court’s order.

Affirmed.

CRENSHAW and MORRIS, JJ., Concur.

      . The record before this court indicates that after Pro-Tech Services filed its answer to the complaint, it had no further involvement in the case below, and Pro-Tech makes no appearance in this appeal.


author: WHATLEY, Judge.

text:
    Clyde MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1117.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2011.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Clyde Mathis appeals an order revoking his probation and his resulting sentence of thirty-five years in prison followed by five years of probation. The trial court revoked Mathis’s probation after finding that he violated condition five of his probation by committing a burglary and that he violated condition six by associating with persons engaged in criminal activity. We affirm the revocation of probation order because there was sufficient, competent evidence in the record to support the trial court’s finding that Mathis associated with persons engaged in criminal activity. However, we conclude that the trial court abused its discretion in finding that Mathis committed a burglary and remand the ease for the trial court to strike its finding regarding the violation of condition five. See Miffin v. State, 19 So.3d 377, 378 (Fla. 2d DCA 2009) (“We review a trial court’s revocation of probation under an abuse of discretion standard.”).

The trial court found that Mathis violated condition five by committing the offense of burglary as a principal on June 2, 2008. “[I]n order to be a principal in a crime, one must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime.” L.J.S. v. State, 909 So.2d 951, 952 (Fla. 2d DCA 2005); see also § 777.011, Fla. Stat. (2008) (defining principal as a person who “commits any criminal offense against the state, ... or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed”). A person cannot be convicted under the principal theory where the “evidence does not exclude the reasonable inference that the defendant had no knowledge of the crime until it actually occurred, and thus that he did not intend to assist in its commission.” J.H. v. State, 370 So.2d 1219, 1220 (Fla. 3d DCA 1979).

As noted in Smith v. State, 502 So.2d 77, 78 (Fla. 3d DCA 1987), and A.Y.G. v. State, 414 So.2d 1158, 1159 (Fla. 3d DCA 1982), evidence is insufficient to establish the requisite intent under the principal theory where the appellant is present at the scene of a burglary and, at the direction of the perpetrator of the burglary, drives the getaway car, because such evidence does not exclude the reasonable inference that the appellant did not know about the crime until after it had occurred.

Here, the State was required to prove by the greater weight of the evidence that Mathis committed the burglary. See Miffin, 19 So.3d at 378. The only evidence of Mathis’s involvement in the burglary on June 2, 2008, were his statements to Detective John Berard. Mathis stated that he unlocked the sliding glass door at the back of his residence and let his wife’s nephews, Chris and Courtney, into the residence. Chris and Courtney had on backpacks when they entered the residence. The most incriminating statement Mathis made to Detective Berard was that he “was accessory to it because I let them come through the back door and jump the fence and stuff like that.” However, there was no evidence that Mathis knew Chris and Courtney were going to commit a burglary that day or that he intended that they commit the burglary. See Smith, 502 So.2d at 78 (holding that appellant’s probation was improperly revoked based on the finding that he committed burglary and robbery where the evidence did not exclude the reasonable inference that he did not know about the robbery until after it occurred, noting that a person cannot be convicted of a “substantive offense based on evidence which proves involvement only as an accessory after the fact”).

The State argued that Mathis knew Chris and Courtney were committing burglaries when he let them in the residence because he knew that they were involved in a previous burglary involving a shotgun. We do not agree with the State that this evidence established Mathis knew Chris and Courtney had committed a burglary when he opened the sliding glass door for them on June 2, as the previous offense occurred about two weeks prior to the burglary at issue, there was no evidence that the two burglaries were connected, and there was no evidence that Mathis was aware of any other burglaries committed by Chris and Courtney. Because there was no evidence showing that Mathis had knowledge of the burglary on June 2 until after it had occurred or that he intended to assist in the commission of the crime, the trial court abused its discretion in finding him guilty under a principal theory. See J.H., 370 So.2d at 1220.

However, there was sufficient, competent evidence to support the trial court’s finding that Mathis violated probation condition six by associating with people engaged in criminal activity. Accordingly, we affirm the revocation of Mathis’s probation based on his violation of probation condition six because this violation was sufficient to revoke probation, see Green v. State, 19 So.3d 449 (Fla. 2d DCA 2009), but we remand for the trial court to strike its finding as to the violation of probation condition five.

It is not clear whether the trial court would have imposed the same sentence based solely on the violation of condition six. Accordingly, we vacate Mathis’s sentence and remand for reconsideration of the sentence. On remand, the trial court may impose the same sentence or exercise its discretion to impose a reduced sentence. See Johnson v. State, 890 So.2d 490, 493 (Fla. 5th DCA 2004); Smith v. State, 705 So.2d 1033, 1034 (Fla. 3d DCA 1998).

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

SILBERMAN and MORRIS, JJ., Concur.

      . There is no merit to Mathis’s claim that he is entitled to a new probation hearing because portions of the transcript of his taped interview with a detective are unintelligible, as he has not identified how he is prejudiced by the omitted portions of the interview. See Jones v. State, 923 So.2d 486, 489 (Fla.2006).


text:
    Alexis Vincent ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1460.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Alexis V. Robinson, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Alexis Robinson [“Robinson”], appeals the trial court’s order setting restitution upon being sentenced for one count of organized fraud and two counts of criminal use of personal identification information. Because a hearing was not conducted prior to awarding restitution in this case, we vacate the order and remand for a restitution hearing to be held after notice before restitution is awarded.

Robinson entered a plea of nolo conten-dere pursuant to a plea agreement to organized fraud and two counts of criminal use of personal identification information. Kelly Timbrook, an investigator with the Medicaid Fraud Division, who was the case investigator, testified that the loss caused by Robinson’s crimes was $519,416.40. The State sought restitution in the amount of $519,416.40 and a reservation of jurisdiction to determine investigative costs and costs of prosecution.

Robinson was sentenced to community control home confinement until February 1, 2008, to allow time to deal with some medical problems. Robinson was also sentenced to fifteen years on counts I and II and twelve years on count III, all to be served concurrently. The court ordered restitution in the amount $519,416.40, payable through collection court. The trial judge ordered that Robinson report to the collection court, within thirty days after release from DOC, to be placed on a payment schedule.

Robinson filed a motion to set aside judgment, objecting to a lack of notice or an opportunity to present evidence prior to entry of the restitution order. Circuit Court Judge Bob Wattles granted Robinson’s motion, set aside the restitution judgment, and directed the State to file a motion with exhibits and set the matter for hearing, if necessary.

Two years later, on February 25, 2009, a different judge, without conducting a hearing, entered a final judgment against Robinson in the amount of $519,677.40. Robinson appealed and claimed it was error to enter the restitution judgment contrary to Judge Wattles’ prior order setting aside the amount of restitution in order to conduct a hearing.

The State concedes that the record does not show that an evidentiary hearing was ever conducted on restitution. As a result, the State agrees that, to the extent no hearing was conducted or a stipulation obtained prior to the entry of the February 2009 judgment, Robinson’s position has merit. Accordingly, we vacate the appealed order and remand for the trial court to conduct a hearing, after notice, before imposing restitution.

ORDER VACATED and REMANDED.

GRIFFIN, COHEN and JACOBUS, JJ., concur.


author: GRIFFIN, J.

text:
    James Frederick HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4540.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, James Frederick Harris, was charged with sexual battery (Count I), aggravated battery on a pregnant person (Count II), and domestic battery by strangulation (Count III), arising from events that occurred on June 22, 2008. Appellant entered into a plea agreement for seven years incarceration, followed by eight years of probation on Count II, consecutive probation for five years on Count III, and a nolle prosequi of Count I. The trial court sentenced appellant in accordance with the plea agreement.

In the judgment and order of probation, the trial court included a “no early termination” condition. Appellant says this was done at the State’s request. Appellant identified this condition in the statement of judicial acts to be reviewed and appointed appellate counsel filed a motion to correct sentencing error to eliminate this condition. This special condition was not included in the written plea agreement and was not orally pronounced at sentencing. The trial court denied the motion.

We agree that this is an invalid special condition of probation. The Department of Corrections [“DOC”] has discretion to recommend early termination under specified statutory conditions. The trial court cannot preempt the DOC’s statutory right to recommend early termination, nor could DOC’s decision to do so constitute a violation of probation condition. The State asserts that the early termination condition was merely an expression of the sentencing judge’s intent, rather than a true “condition.” If this were merely a statement of the trial court’s view, we would find no error, as there could be no misunderstanding that it might be binding on DOC or on the probationer. Here, it is specifically identified as a condition of probation. Appellant is entitled to have it removed from the judgment and order of probation.

Condition STRICKEN.

ORFINGER and LAWSON, JJ., concur.


text:
    Carlos LANG, F. Lang and S. Lang, Minors, Petitioners, v. John BUSH, Jr., Respondent.
    No. 5D10-1533.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    James L. D’Andrea, C. Ryan Eslinger and Lauren K. Jacobellis of Milton, Leach, Whitman, D’Andrea & Milton, P.A., Jacksonville, for Petitioners.
    Kirsten Doolittle of The Law Office of Kirsten Doolittle, P.A., Jacksonville, for Respondent.
   PER CURIAM.

We deny the Petition for Certiorari. We conclude that the trial court applied the correct legal standard. See O’Neal v. Sun Bank, N.A., 754 So.2d 170, 172 (Fla. 5th DCA 2000) (Fifth Amendment may be invoked when deponent has “reasonable grounds to believe that direct answers to deposition or interrogatory would furnish a link in the chain of evidence needed to prove a crime against him.”). Here, Petitioners have no reasonable apprehension of criminal prosecution because the federal statute is not applicable and the statute of limitations has run on the applicable state crime.

PETITION DENIED.

ORFINGER, TORPY and EVANDER, JJ., concur.


text:
    Nicholas DROST, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2604.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Nicholas L. Drost, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Nicholas Drost appeals the trial court’s order summarily denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. Because the order was entered by a judge who had previously recused himself from the probation revocation proceeding which was the subject of Drost’s rule 3.850 motion, said order is void. See Goolsby v. State, 914 So.2d 494 (Fla. 5th DCA 2005). Following the procedure utilized in Gools-by, we deem Drost’s notice of appeal as being a petition for writ of mandamus, grant the petition, and remand this matter to the trial court with directions that the post-conviction motion be considered de novo by a different judge.

PETITION GRANTED; CAUSE REMANDED.

GRIFFIN, PALMER and ORFINGER, JJ., concur.


text:
    Mark ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3195.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Mark Elliott, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Mark Elliott timely appeals an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief and a second order denying his motion for rehearing. We reverse because the original denial order was entered by a judge who had previously entered an order recusing himself from Elliott’s case. See, e.g., Collado v. Collado, 858 So.2d 1255 (Fla. 5th DCA 2003). Although a successor judge denied the motion for rehearing, he did so on grounds that the motion improperly reargued matters considered and rejected in the original denial order. Instead, the successor judge should have set aside the original denial order and considered Elliott’s post-convietion motion anew. Id. Accordingly, we reverse both orders and remand with instructions that the successor judge give Elliott a new hearing on his 3.850 motion. We have not considered the merits of Elliott’s motion, and our remand does not preclude another summary denial of Elliott’s motion, if the successor judge independently determines that summary denial is legally warranted.

REVERSED and REMANDED.

GRIFFIN, PALMER, and LAWSON, JJ., concur.


text:
    James Earl BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3240.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    James Earl Brown, Polk City, pro se.
    No appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

In his 2000 case, Appellant, James Earl Brown [“Brown”], entered into a negotiated plea to a single, lesser charge of attempted sexual battery. In this case, he appealed the denial of his seventh Rule 3.800(a) motion. This Court per curiam affirmed and issued a show cause order as required by State v. Spencer, 751 So.2d 47 (Fla.1999), giving Brown an opportunity to explain why he should not be sanctioned for abusing the judicial process.

Having carefully considered Brown’s response, we conclude that he has provided no valid reason for filing this frivolous appeal, that he is abusing the judicial process, and that he should be barred from further pro se filings. See In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989); see, e.g., Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (defendant’s “pro se filings have become frivolous, an abuse of process, and a waste of the taxpayers’ money”); Henderson v. State, 903 So.2d 999, 1000 (Fla. 5th DCA 2005) (no matter how repetitious or frivolous a filing is, it requires some portion of the court’s limited resources; it is the court’s responsibility to see that these resources are allocated in a way that promotes the interests of justice); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Bauer v. State, 31 So.3d 220, 220 (Fla. 4th DCA 2010) (“It continues to concern us that [rule] 3.800 permits a prisoner to file a motion to correct an illegal sentence at any time, and there is no limit on the number of such motions which can be filed.... This has led to the proliferation of successive filings by prisoners and a substantial and costly increase in workload for both trial and appellate courts.”)

Therefore, the Clerk of this Court is directed not to accept any further pro se filings from Brown concerning the 2000 judgment and sentence case. Any additional pleadings or motions in this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar. See Johnson v. State, 652 So.2d 980, 980 (Fla. 5th DCA 1995) (prohibiting petitioner from filing further pro se pleadings after thirteen challenges to conviction and sentence). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005); § 944.279(1), Fla. Stat. (2010).

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

GRIFFIN, SAWAYA, and EVANDER, JJ., concur.


text:
    Douglas S. NELSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3629.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Douglas L. Nelson, Jasper, pro se.
    No Appearance for Respondent. '
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying the rule 3.850 motion in Case Nos. 05-2006-CF-23014 and 05-2006-CF-68667, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, COHEN and JACOBUS, JJ., concur.


text:
    Tyress B. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3696.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Tyress B. Davis, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for post-conviction relief in Case No. 2005-CF-002708-A in the Circuit Court in and for Seminole County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Jessie C. WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3937.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Jessie Ward, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order on Petitioner’s rule 3.850 motion rendered March 17, 2010, in Case No. 2006-CF-155, in the Circuit Court in and for Citrus County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, COHEN and JACOBUS, JJ., concur.


text:
    Samuel KEARNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-4161.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Samuel Kearney, DeFuniak Springs, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for postconviction relief in Case No. 2004-CF-003465-A in the Circuit Court in and for Marion County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and JACOBUS, JJ., concur.


text:
    Robert ACOSTA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-49.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.
    Robert Wesley, Public Defender and Robert C. Power, Assistant Public Defender, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number CF08-18275, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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