text:
    STATE of Florida, Appellant, v. E.W., a child, Appellee.
    No. 4D11-1110.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The State appeals the trial court’s non-final order granting E.W.’s motion to suppress his statements made during a police interview. We reverse.

E.W. was charged with grand theft. He moved to suppress his recorded statements made to a detective who was investigating allegations of a theft. The trial court conducted an evidentiary hearing on the motion where the following facts were adduced.

The detective responsible for investigating the crime contacted E.W.’s mother and informed her of the allegations against her son. He asked her if E.W. would come in to speak with the police and told her that E.W. could possibly be arrested if he did not speak with him. Thereafter, E.W., accompanied by his mother, went to the police station.

At the start of the interview, E.W. was advised that he was not under arrest or being detained and was free to leave. He was also informed that he did not have to speak with the detective and was assured that he was “not going to jail today or anything like that.” E.W.’s mother was present with E.W. the entire time and engaged in conversation during the interview. Although E.W. ultimately confessed to committing the crime, he was not placed under arrest that day, and he left with his mother.

At the conclusion of the hearing, the trial court granted the motion suppressing E.W.’s statements, concluding that E.W. was in custody for Miranda purposes. This appeal follows.

“The standard of review applicable to a motion to suppress requires an appellate court to defer to the trial court’s factual findings but review legal conclusions de novo.” State v. Blaylock, 76 So.3d 13, 14 (Fla. 4th DCA 2011) (citing State v. Abbey, 28 So.3d 208, 210 (Fla. 4th DCA 2010)).

The State argues that E.W. was not in custody for purposes of Miranda because a reasonable person in E.W.’s position would not believe that he was in custody. See Jones v. State, 748 So.2d 1012, 1019 (Fla.1999) (“Miranda only applies when a defendant is subject to custodial interrogation.”). Custody is determined by an objective, reasonable person standard — whether a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest. See Johnson v. State, 800 So.2d 275, 278 (Fla. 1st DCA 2001) (citing Ramirez v. State, 739 So.2d 568, 573 (Fla.1999)).

Florida courts have applied the following four factors to determine whether one is in custody for purposes of Miranda:

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Mansfield v. State, 758 So.2d 636, 644 (Fla.2000) (citing Ramirez, 739 So.2d at 574).

Applying the factors announced in Mansfield, we conclude that E.W.’s encounter with the police was entirely consensual for purposes of Miranda. The detective first contacted E.W.’s mother and informed her of the purpose of the meeting. Moreover, the mother voluntarily brought E.W. to the police station, was present with E.W. throughout the interview, and was advised that E.W. did not have to speak to the police. Furthermore, E.W. was informed that he was free to leave at any time, was not under arrest, and would not be arrested that day. See State v. Scott, 786 So.2d 606, 609 (Fla. 5th DCA 2001) (“ ‘[I]n the absence of any indi-cia of coercion or intimidating circumstances, police questioning about criminal conduct or activity alone, does not convert an otherwise consensual encounter into a custodial interrogation.’ ”) (quoting Ramsey v. State, 731 So.2d 79, 81 (Fla. 3d DCA 1999)).

E.W. points out that some of the evidence presented by the detective during the interview was false. However, even though the detective provided E.W. with false evidence against him, this was a proper form of deception. See Wyche v. State, 906 So.2d 1142, 1144 (Fla. 1st DCA 2005) (“Deception does not negate consent. Absent coercion, threats or misrepresentation of authority, the courts have long recognized deception as a viable and proper tool of police investigation.”) (citing Hoffa v. U.S., 385 U.S. 293, 302-03, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)).

Under the totality of the circumstances, we conclude that a reasonable fifteen-year-old would have believed that he was free to leave. Cf. D.B. v. State, 34 So.3d 224, 226-27 (Fla. 4th DCA 2010) (“Under the totality of the circumstances, a reasonable eleven-year-old child would not believe he was free to leave” because the juvenile was questioned without his mother present, the detective threatened the juvenile with placement in a foster home if he did not tell the truth, the juvenile was “repeatedly confronted with evidence of guilt,” and “the detective never informed the juvenile that he was free to leave.”).

Accordingly, we reverse the order granting the motion to suppress and remand the case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

MAY, C.J., and GERBER, J., concur.

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

      . At the time he was charged, E.W. was flfteen years of age.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    William OERTEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-221.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

William Oertel timely appeals the order of the trial court, finding that he willfully and substantially violated his probation. We affirm but remand for entry of a written order of violation of probation.

After a jury trial, Oertel was found guilty of four counts of possession of child pornography, and sentenced to thirteen months in prison, followed by eighteen months of sex offender probation. A special condition of his probation was that he “complete successfully on the first try any recommended treatment.” Thereafter, an affidavit of violation of probation was filed, alleging that Oertel had violated this special condition by being discharged from the CORTE program.

At the violation of probation hearing, Brooke Bauman, Oertel’s primary counsel- or at CORTE, testified that Oertel failed to sufficiently participate in the program and became “extremely argumentative to the point where it was starting to interfere with the progress of the other offenders.” She explained that Oertel “would try to argue the innocence of other offenders in the program who were admittedly open to discussing their offenses and expressing their needs for treatment,” and that “he would try to find justifications as to why they were innocent or why they shouldn’t be there.” According to Bauman, Oertel “was just overall disruptive in the program.” She further testified that Oertel tried to convince her that child pornography was art. Because she did not believe Oertel was making a genuine effort to complete the program, Oertel was terminated. Bauman testified that she has treated over 100 patients at CORTE and that Oertel was the third patient she had asked to leave the program.

The defense called Jack Fleischman, Oertel’s trial attorney, who testified that CORTE forces people to admit guilt or be terminated, and that he had other clients with the same problem. Fleischman described the CORTE program as “a violation waiting to happen.” Dr. Eric Imhof, a licensed clinical psychologist specializing in the treatment of sex offenders, testified that Oertel’s lack of participation in CORTE may have been due to being placed in the wrong program. Oertel testified that he began to have conflicts with Bauman over his refusal to admit guilt, and that he explained to Bauman that he had not pled guilty, had gone to trial and lost, and that his case was pending on appeal. Otherwise, he testified, he participated in group. He further testified that Bauman took a very hostile, aggressive approach, but that he continued to attend and pay for the sessions. Bauman testified that she did not require Oertel to admit guilt.

Following the hearing, the trial court found Oertel in violation:

All right. This isn’t really even a difficult decision. I’m going to find that the CORTE treatment program is an appropriate treatment program for sex offenders, any type of sex offenders, it’s widely accepted in the community. It’s one of the two programs that are used, to my knowledge, most often, it’s even specified to be used in most orders. But I am finding that that’s an appropriate treatment program.
If people don’t want to get better or don’t want to change, and that’s the situation I feel is here, the behavior wants to continue, that’s a reason why you’d want to get out of a program that isn’t going to tolerate non-compliance. And that’s what we have here. We keep focusing on that he goes to every session. What’s the difference between being absent and going and doing nothing or going and doing things to contraindicate or contradict any of the types of treatment methods that are going on. It’s just not that different.
I don’t believe that personality clash exists with Ms. Bauman. I think it’s more of a clash with the restrictiveness of this program and the requirements of the program.
So, I’m going to find that he willfully violated his probation. I know it’s just proof beyond — the doubt is a lot less than beyond a reasonable doubt, but I don’t have a reasonable doubt even. I have no doubt at all as a matter of fact.

This appeal followed.

Oertel, relying on Slovak v. State, 862 So.2d 875 (Fla. 2d DCA 2003), argues that the trial court erred in finding that he willfully and substantially violated his probation because he was inappropriately placed at CORTE, had a perfect attendance record, paid for every session, committed no new substantive offenses and was not alleged to have violated any other conditions of probation. The State argues that the trial court properly found a willful and substantial violation because the evidence established that Oertel refused to participate in therapy. The State submits that Archer v. State, 604 So.2d 561 (Fla. 1st DCA 1992), is identical to the case at bar.

“In order to support a revocation of probation, the State has the burden of proving by the greater weight of the evidence that the probationer’s violation was both substantial and willful.” Fulton v. State, 871 So.2d 1037 (Fla. 4th DCA 2004) (quoting Anderson v. State, 711 So.2d 106, 108 (Fla. 4th DCA 1998)). However, a finding of a “substantial” violation must be made after “considering all of the terms of probation imposed.” Rathburn v. State, 353 So.2d 902, 903 (Fla. 4th DCA 1977) (citations omitted). “On appeal, the trial court’s order is reviewed under an abuse of discretion standard.” Davis v. State, 796 So.2d 1222, 1225 (Fla. 4th DCA 2001) (citing Matthews v. State, 736 So.2d 72, 75 (Fla. 4th DCA 1999)).

In Slovak, Slovak was placed on three years of probation with a condition requiring that he “attend sex offender counseling.” Slovak, 862 So.2d at 876 (emphasis added). An affidavit was filed, alleging that Slovak violated probation because he was terminated from sex offender counseling. Id. At the hearing, Slovak testified, and the program director agreed, that Slovak was placed in a counseling group whose members had committed more serious offenses that were different from Slovak’s offense. Id. Slovak testified that he participated the best he could but his participation was hampered because he was uncomfortable with the issues raised by the group. Id. The program director testified that he terminated Slovak from the program because although Slovak attended, he did not really participate in the group therapy. Id. On appeal, the Second District held that the evidence did not show a willful and substantial violation of the condition that he attend sex offender counseling. Id. (emphasis in original).

In Archer, a special condition of probation required Archer to undergo a psycho-sexual evaluation and successfully complete any and all recommended treatment; no time frame for completion of this condition was included in the order. Archer, 604 So.2d at 562 (emphasis added). Archer began treatment but was terminated for failing to cooperate with his counselor. Id. He was then referred to a psychologist, who conducted a psychosexual evaluation; as a result of the evaluation, the psychologist placed Archer in a treatment program. Id: Essential to the successful completion of the treatment program was Archer’s acknowledgment that he had trouble controlling his sexual impulses. Id. After four weeks of therapy, the psychologist discharged Archer because he refused to acknowledge that he had a sexual problem; Archer was subsequently arrested for violation of probation. Id. At the hearing, the psychologist testified that, in light of Archer’s unwillingness to acknowledge his problem and his failure in the program, additional therapy sessions would be useless. Id. The trial court revoked Archer’s probation. Id. On appeal, the First District affirmed based on the psychologist’s testimony and because “Archer adamantly maintained at the hearing that he had no sexual problem and expressed no willingness to participate in a treatment program or otherwise comply with the condition of probation.” Id. at 563.

In Bell v. State, 643 So.2d 674 (Fla. 1st DCA 1994), Bell was sentenced to probation, with the condition that he “submit to Psychosexual counseling as directed by [his] Probation Officer.” Id. at 674. Bell was evaluated and recommended to a sexual offender treatment program; however, he was terminated from the program by his counselor for refusing to admit to the charges against him, which was a requirement for continuation in the program. Id. at 674-75. An affidavit of violation of probation was filed for failing to complete psychosexual counseling per his instructions and for being terminated from counseling for refusing to admit his involvement in the offense committed. Id. at 675. His probation was revoked. Id.

On appeal, the First District reversed:

Bell’s probation order merely required that he “submit to” psychosexual counseling — a requirement which he satisfied by attending eight weekly counseling sessions before being terminated therefrom by his counselor for refusing to admit to the underlying charges. The probation order did not require that he admit to the underlying charges or that he complete the counseling at issue. These additional requirements imposed respectively by Bell’s counselor and probation officer amounted to an unauthorized and impermissible upward modification of Bell’s probation conditions, and Bell cannot now be penalized for failing to abide by them. As such, we reverse Bell’s probation revocation and remand to the trial court with directions that Bell’s probation be reinstated.

Id. at 675 (citation omitted). The court added:

We emphasize that this holding does not conflict with our recent decision in Archer, in which we affirmed a probation revocation order under analogous, but by no means identical, circumstances. Significantly, the Archer decision involves at least three important factual distinctions. First, the probation condition at issue in Archer required that the appellant successfully complete (as opposed to “submit to”) psychological treatment. Id. at 562. Second, the Archer appellant’s lack of desire to complete counseling was relevant to the specificity of his probation condition requiring him to complete counseling. Id. at 563. Again, because the probation conditions at issue here do not require Bell to complete counseling, his lack of desire to do so is irrelevant. Third, the appellant in Archer was discharged from counseling because he refused to acknowledge that he had a sexual problem. Id. at 562. In contrast, Bell was discharged from counseling for failing to admit his guilt in the underlying crimes.

Id. at n. 1 (citation omitted).

Here, the special condition to Oertel’s probation states:

Additional instructions ordered: Within 30 days. Defendant must complete successfully on the first try any recommended treatment and treatment must be completed at least 90 days before the end of probation.

We conclude that Slovak is distinguishable because in that case the condition of probation was that Slovak attend counseling, which he did; here, Oertel’s condition is to complete counseling, which he did not. We also find Archer to be distinguishable because in that case the probationer “adamantly maintained at the hearing that he had no sexual problem and expressed no willingness to participate in a treatment program or otherwise comply with the condition of probation.” Here, Oertel testified that he was open to treatment and willing to continue treatment with another provider. Moreover, in Archer, the psychologist testified that she did not believe there was any therapy that would be beneficial. Here, Dr. Imhof testified that other more holistic treatment approaches would be better suited for Oertel. However, like Archer and unlike Bell, Bauman testified that she did not require Oertel to admit his guilt.

“When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence” because “the trial judge is in the best position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.” Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) (citations and quotations omitted). Based on the testimony adduced at the hearing in this case, we must affirm the trial court’s finding that Oertel willfully and substantially violated his probation. However, although the trial court orally pronounced the violation of probation, it did not enter a written order. Consequently, we remand for entry of a written order. See King v. State, 46 So.3d 1171, 1172 (Fla. 4th DCA 2010) (“If a trial court revokes a defendant’s probation, the court is required to render a written order noting the specific conditions of probation that were violated.”); Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011) (“Even though the record is clear, a formal, written order specifying each condition of probation violated must be entered in this case. Therefore, we remand for entry of an order in conformity with this opinion.”).

Affirmed.

TAYLOR and HAZOURI, JJ., concur.

      . CORTE is a private mental health counseling program that contracts with the Department of Corrections (DOC).


author: DAVIS, Judge.

text:
    George A. ROUTH, Appellant, v. Sarah L. THOMPSON, and Jamie Routh Cox, individually, and as trustee, Appellees.
    No. 2D11-2924.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2012.
    David M. Wall, Clearwater, for Appellant.

      Mary Ellen Borja of Mary Ellen Borja, P.A., Clearwater, for Appellee Sarah L. Thompson.
    No appearance for remaining Appellee.
   DAVIS, Judge.

George A. Routh (the Husband) challenges the trial court’s nonfinal “Order on Contempt and Temporary Attorney Fees” in the divorce proceedings between himself and Sarah L. Thompson (the Wife). Because the trial court’s order does not contain certain required findings of fact, we must reverse and remand for further proceedings.

The Wife filed a Verified Motion for Contempt and Motion for Attorney’s Fees and Costs. Following a hearing on the motion, the trial court entered a written order, requiring the Husband to pay the Wife $1000 a month in temporary attorney’s fees “until the issue of permanent attorney’s fees is determined by the court.”

On appeal, the Husband argues that the trial court erred in failing to make findings regarding the Wife’s need and the Husband’s ability to pay. We agree. See Safford v. Safford, 656 So.2d 485, 485 (Fla. 2d DCA 1994) (“The trial court must ‘... determine that one spouse has a need for suit money and the other has the ability to pay ....’” (quoting Duncan v. Duncan, 642 So.2d 1167 (Fla. 4th DCA 1994))).

With regard to need, the court’s order here arguably establishes the Wife’s need by noting that she owes her attorney $60,000 and that the Husband has failed to pay court-ordered temporary alimony. However, concerning the Husband’s ability to pay, the order merely states that “the Husband’s current financial affidavit showed that the Husband has a monthly net income of $4,027.” The court does not specifically find that the Husband has the ability to pay, nor does it even hint at it by spelling out his income sources and monthly expenses. As such, the court’s order is deficient.

We also agree with the Husband’s other argument on appeal — that the trial court’s order is deficient because the trial court failed to make the required findings regarding the reasonableness of the Wife’s attorney’s hourly rate and the number of hours expended. In Chhouri v. Chhouri, 2 So.3d 987, 988 (Fla. 2d DCA 2008), this court reviewed a temporary attorney’s fee award where “the order contain[ed] no findings of fact regarding the reasonableness of the attorney’s fees.” This court held as follows:

The party seeking fees must prove with evidence the reasonableness and necessity of the fee sought. Despite the very broad discretion granted to the court in awarding temporary support, we have consistently required that an award of temporary attorney’s fees be accompanied by factual findings regarding reasonableness of the hourly rates and time expended. Because the order in this case lacks the requisite findings, we reverse that portion of the order awarding a specific amount of attorney’s fees and remand for further proceedings regarding reasonableness.

Id. (citations omitted).

Here, with regard to the amount of the award, the trial court’s order merely states: “The Wife has requested that the Court require the Husband to pay temporary fees for her attorney in an amount at least equal to the $1000 per month the Husband is paying his attorney each month.” Although the order does note that the Wife already owes her attorney $60,000, it says nothing about the reasonableness of this debt and completely fails to address the number of hours expended by the attorney in amassing this debt.

As such, we reverse and remand with instructions that the trial court first address the Wife’s need and the Husband’s ability to pay temporary attorney’s fees. If the court finds that the Wife has the need and the Husband has the ability to pay, it shall conduct further proceedings regarding the reasonableness of the hourly rate charged and the number of hours expended.

Reversed and remanded with instructions.

NORTHCUTT and BLACK, JJ., Concur.

      . Appellee Jamie Routh Cox is a third-party defendant below who is not a part of this appeal.


author: PER CURIAM.

text:
    Richard GARNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-355.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    Richard Garner, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. The appellant’s request for a belated appeal is denied. See Powell v. Florida Dept. of Corrections, 727 So.2d 1103 (Fla. 1st DCA1999).

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


author: MAY, C.J.

text:
    Jesus BARRETO and Dania Barreto, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. 4D10-4710.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Rehearing Denied April 5, 2012.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, and Michael Cecere of Cecere & Santana, P.A., Sunrise, for appellants.
    Robert C. Groelle and Daniel T. Galo of Groelle & Salmon, P.A., Wellington, for appellee.
   MAY, C.J.

Homeowners appeal an order denying their motion for attorney’s fees pursuant to section 627.428, Florida Statutes (2008). They argue the trial court erred in denying their request because they prevailed in a dispute with their insurance carrier. We agree and reverse.

The insurer issued a policy covering the homeowners’ home. The policy provided coverage for property damage and additional living expenses as the result of an accident. In 2008, the home was flooded after a pipe broke causing extensive water damage, requiring repairs and replacements, cleaning, and other remedial measures. The homeowners also incurred additional living expenses. The policy provided for an appraisal of any dispute.

The insurer paid $126,007.81 of the $312,542.39 claimed. The homeowners retained a public adjuster, who sent a letter to the insurer advising that the homeowners were invoking the appraisal provision under the policy and had designated an appraiser. The insurer also demanded an appraiser, obtained counsel, and requested the homeowners submit to an “examination under oath.” On May 27, the insurer abated the appraisal process. On June 1, the homeowners wrote the insurer cancelling the examination under oath, but explained that they would try to reschedule. The letter again notified the insurer that the homeowners had invoked the appraisal process. The letter further advised that the homeowners had decided to obtain legal counsel.

The homeowners filed a complaint seeking benefits under the policy. Based on the parties’ stipulation, the trial court entered an order staying the action for forty-five days, directing appraisal, but retaining jurisdiction “to address any issues relating to coverage or interpretation of the insurance policy; and any entitlement or amount of attorney’s fees or costs, if applicable.” The order further provided, “[u]pon conclusion of the Appraisal proceeding, this Court shall determine if there remain any outstanding issues for adjudication in this action and proceed accordingly.”

The parties’ respective appraisers were unable to agree on an umpire. As a result, the homeowners filed a motion asking the trial court to appoint one. The trial court did so, and thereafter entered agreed orders extending the previous stay order and abating the action.

A few months later, the umpire issued an award of $214,554.66, with additional living expenses to be awarded as incurred. The insurer issued a draft purportedly paying the net benefits owed, but in an amount that did not include certain unpaid claims. Soon thereafter, the homeowners moved to confirm the appraisal award and for entry of final judgment in the correct amount pursuant to the appraisal award.

The motion alleged the appraisal award was almost $100,000.00 more than the amount the insurer had agreed to pay prior to filing suit. Moreover, the homeowners alleged that they had incurred $43,491.00 in additional living expenses, of which the insurer had paid $32,450.00, leaving an unpaid balance of $11,041.00. The homeowners requested an order confirming the appraisal award and a final judgment in the amount of $110,838.81, reserving jurisdiction to award attorney’s fees and costs. Prior to the hearing on the motion, the insurer agreed to pay $86,252.43.

The homeowners filed a motion to lift the stay, and asked the court to determine the amount of additional living expenses owed. The trial court granted the motion, lifted the stay, and ordered the insurer to answer the amended complaint. In its answer, the insurer alleged it had paid all amounts due for the claimed loss, that the amounts being claimed were the result of a prior loss and not covered under the terms of the policy, and that the homeowners had failed to participate in the appraisal as required by the policy. The insurer ultimately paid the balance of the additional living expenses in the amount of $20,656.09.

The homeowners then served their motion for entitlement to attorney’s fees pursuant to section 627.428(1), Florida Statutes (2008). The insurer responded with a memorandum in opposition. The trial court denied the motion for fees and the motion for rehearing. From these orders, the homeowners appeal.

The homeowners argue they are entitled to attorney’s fees because they had to resort to the judicial process to obtain the benefits owed to them under the policy. The carrier responds that this court lacks jurisdiction and that the litigation did not serve a legitimate purpose. We have jurisdiction and agree with the homeowners that they are entitled to attorney’s fees.

We have de novo review. Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252, 253 (Fla.2006).

Section 627.428, Florida Statutes, provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. (2008).

“[WJhere an insurer pays policy proceeds after suit has been filed but before judgment has been rendered, the payment of the claim constitutes the functional equivalent of a confession of judgment or verdict in favor of the insured, thereby entitling the insured to attorney’s fees.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla.2000). A trial court should award attorney’s fees to an insured pursuant to section 627.428 when it appears as though the insurer “would not have paid [the insured] the proper amount of the loss without judicial intervention.” Jerkins v. USF & G Specialty Ins. Co., 982 So.2d 15, 18 (Fla. 5th DCA 2008).

We have held that an insured is entitled to recover attorney’s fees under section 627.428 even though the complaint is filed after the insurer has invoked its appraisal rights and in the absence of final judgment. Lewis v. Universal Prop. & Cas. Ins. Co., 13 So.3d 1079, 1082-83 (Fla. 4th DCA 2009). “[T]he right to fees turns upon whether the filing of the suit served a legitimate purpose.” Id. at 1082.

Here, the insurer’s payments of $20,656.09 and $86,252.43 made after suit was filed were tantamount to confessions of judgment entitling the homeowners to attorney’s fees. The homeowners’ lawsuit served a legitimate purpose because it motivated the insurer to pay not only the full amount of the appraisal award, but the additional living expenses incurred, as well. Before suit was filed, the carrier had abated the appraisal process. Judicial intervention moved the appraisal process forward and led to the umpire’s award.

We find the insurer’s reliance on Federated National Insurance Co. v. Esposito, 937 So.2d 199 (Fla. 4th DCA 2006) misplaced. In Esposito, we held that an insured was not entitled to recover attorney’s fees when it filed suit after the insurance company had fulfilled its obligations under the appraisal award. Es-posito, 937 So.2d at 201-02. Here, because the insurer paid the full amounts claimed only after suit was filed, it essentially confessed judgment. The trial court erred in denying fees to the homeowners.

We therefore reverse the order denying the homeowners’ attorney’s fees and remand the case for a determination of the amount.

Reversed and Remanded.

DAMOORGIAN and GERBER, JJ., concur.

      . BDO Seidman, LLP v. British Car Auctions, Inc., 789 So.2d 1019, 1020 (Fla. 4th DCA 2001) (order denying attorney’s fees is appeal-able as a final order).


author: GERBER, J. CONNER, J.,

text:
    S.M., the Mother, Petitioner, v. R.M., the Father, Respondent.
    No. 4D11-3632.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Rehearing Denied March 30, 2012.
    Elizabeth J. Kates, Pompano Beach, and Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for petitioner.

      Greg A. Lewen and Allegra Phillips Clemente of Greg A. Lewen, P.A., Fort Lauderdale, for respondent.
    Juliette E. Lippman of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, as guardian ad litem.
   GERBER, J.

The mother appeals the circuit court’s sua sponte shelter order placing the child in the father’s custody. The mother argues that the court denied her request to be heard during the shelter hearing and thereby violated her right to due process. We treat the mother’s appeal as a petition for writ of certiorari, grant the petition, and remand with directions. We withhold issuance of the writ on the assumption that the circuit court shall comply with our directions.

A detailed history of the extensive record which the parties have presented to this court is necessary to better understand the issue which the petition presents.

In 2006, a Broward County family court judge entered a final judgment dissolving the marriage between the mother and the father. The final judgment provided, in pertinent part, that the mother was to have primary custody of the parties’ only child, with the husband having established rights of access to and visitation with the child on certain dates. The judge retained jurisdiction to enforce the final judgment.

In 2009, the father filed a petition for modification. The father alleged that the mother was interfering with the father’s access to and visitation with the child. The father also alleged that the child had developed psychological issues for which the mother was not seeking treatment. The mother disputed these allegations.

In January, 2011, the father filed an emergency motion seeking to be granted sole custody of the child. The father alleged that an expert appointed to evaluate the child found that the mother was severely alienating the child. The mother disputed these allegations.

In February and April, 2011, the Bro-ward County family court judge held four evidentiary hearings on the father’s motion. During these hearings, the father presented his evidence. However, the mother did not complete her presentation of evidence. The judge did not rule on the father’s motion.

In June, 2011, the family court judge recused himself without ruling on the father’s motion. The clerk assigned the case to a new family court judge.

In July, 2011, the father filed with the new family court judge an updated emergency motion seeking sole custody of the child. The father represented that earlier that month, the Department of Children and Families issued a report finding that the mother was causing mental injury to the child. According to the father, however, the Department was not filing a dependency petition because of his pending motion. The father requested that the judge appoint a guardian ad litem for the child and set another evidentiary hearing on his motion.

On July 29, 2011, the new family court judge held a brief hearing on the father’s requests. The mother objected to the father’s requests. The judge entered an order appointing a guardian ad litem and directing the guardian to file a report with her recommendations for parental responsibility and time-sharing for the child. The judge entered a separate order setting a two-hour evidentiary hearing on the father’s motion for September 15, 2011. The judge later rescheduled the evidentiary hearing due to scheduling conflicts. The judge ultimately set the two-hour eviden-tiary hearing for October 5, 2011.

At the October 5th hearing, the father was present with his attorney and the mother was present with her attorney. The child was not present. The court stated that the first issue was whether the father’s motion to change custody was an emergency. The court called the guardian ad litem as the first witness. The court asked the guardian if, based on her investigation, this matter was an emergency. The guardian responded it was. The court announced that it would proceed with the hearing. The court accepted the guardian’s report into evidence. In the report, the guardian reported on her personal observations of the child’s separate interactions with the father and the mother. Based on those observations and other research which the guardian performed, she opined that the mother was causing mental injury to the child. The guardian recommended that the court appoint certain experts to treat the child and to provide therapy to the family. The guardian further recommended that the court grant the father temporary sole custody and ultimate decision-making authority regarding the child’s treatment. The guardian did not discuss the possibility of commencing a shelter proceeding or a dependency proceeding pursuant to Chapter 39, Florida Statutes.

The court then called the Department’s investigator as the next witness. The investigator was based in Palm Beach County because the child was living in Palm Beach County. The investigator testified that, based on his observations, the child was suffering maltreatment and mental injury while in the mother’s custody. The investigator stated that the parental alienation alleged in this case was “beyond anything that any of us have ever seen.” The court asked the investigator what the Department did to protect the child based on his findings. The investigator testified that he wanted to remove the child and presented the case to a Department attorney for review. According to the investigator, however, the attorney responded that the Department could not remove the child because the mental injury already occurred and because the family court proceeding vested jurisdiction in Broward County. The mother objected on hearsay grounds. The judge overruled the objection.

Then, approximately ten to fifteen minutes into the hearing’s allotted two hours, and without the judge giving the mother any opportunity to be heard, the following exchange occurred:

Judge: It is this court’s opinion that the primary responsibility for the safety of children, until there is a court hearing, lies in the Department of Children and Families. And that responsibility cannot be abdicated to a family court, and just for the reason of what happened in this case ... that judges get recused, judges change, and hearings get postponed.
Judge: [The Department has] an independent duty to file a dependency action.
Investigator: I will do so immediately if you ask me to, Your Honor.
Judge: Absolutely. It is a dependency. It doesn’t belong in family court. Do you need me to sign a shelter order?
Investigator: I would like that, yes, Your Honor.
Mother’s Attorney: Can I cross-examine him before you sign a shelter order? Judge: No, ma’am. There is a finding ... of maltreatment and mental injury, ma’am. It is not my case. This is not a family case. This is a dependency case. You can argue it to the dependency-judge, okay? This hearing is over.
Investigator: I believe, Your Honor, because the abuse occurred and is occurring in Palm Beach County, it would go to a Palm Beach County court and shelter it in Palm Beach County court.
Judge: Okay. To be in Palm Beach County.
Mother’s Attorney: Now, is this a transfer or actual shelter?
Judge: This is an actual shelter. That means that a Palm Beach judge has to have a hearing within 24 hours.
Judge: Do we have a statement of procedures for the dependency court in Palm Beach. I don’t think we do. Investigator: I can basically state how it will go.
Judge: Why don’t we do that because it’s an oral statement of dependency per summary procedures in Palm Beach County. Go ahead.
Investigator: Okay. The child would be removed by me or one of my delegates upon the commencement of the school day.... And then at that point we would contact the placement division to determine whether the child would be placed. Of course the first place we look to place the child is with relatives.
Judge [to the investigator]: May I order the direct placement with the father on a temporary basis ... ?
Mother’s Attorney: I object to the entire lack of due process in this case, to the procedure that has been followed, the questioning, and my failure to be allowed to put on any witnesses, the sudden urgency of the hearing.... The guardian ad litem’s report being admitted without any cross-examination and my [not being allowed] to put on one witness.
Judge [to the mother’s attorney]: Excuse me. I can’t listen to you and write at the same time. I will give you a chance. Just let me do that.
Judge [to the investigator]: At this point do you need to take the child ... or can we order that the father pick up the child?
Investigator: I believe that we can allow the father to pick up the child.
Judge: Okay. So I’m going to change that, father and maintained in father’s sole custody pending DCF investigation.
Mother’s Attorney: Judge, I would like to request a stay pending appeal to the Fourth DCA.
Judge: Denied.
Mother’s Attorney: And I would like to talk about the history of this case.
Judge: I think that is for the Palm Beach dependency judge, and I understand that you are a family lawyer.... The dependency proceedings are emergency proceedings. This is just a fingers in the dyke momentary proceeding. Within 24 hours you are going to be before a dependency judge. So that all [this] is is a 24-hour order. It doesn’t extend beyond 24 hours. In 24 hours the dependency judge can decide to go forward with this or kick it back here. So you don’t know, this is only a 24-hour order, that’s all this is. And the order is only made upon the Court’s sole determination that this case is inappropriate for family court, and that it is appropriate for dependency court. All I’m doing is making a legal determination based upon the standard for dependency that there is detriment or circumstances producing or likely to produce harm of a continuing nature putting the child at risk. That means I am overruling the legal department of the Department of Children and Families. As a judge I can overrule the legal department of [the] Department of Children and Families, and say that this case is not appropriate for family court. The decision to be made as to whether it is appropriate for a family court is just what [the mother’s attorney] is complaining of ... and that is the delay and the lack of services that this Court can provide.
Mother’s Attorney: I’m not complaining about the delay. I’m complaining because of the lack of due process.
Judge: Well, ma’am, your due process starts now. Your client has a right to counsel and to be represented in court. You are representing her in court. You are here representing her.... At this point it would not behoove your client to testify under oath without ... your opportunity to speak to your client about the difference between family court and dependency court.... You don’t want to go forward here today.
Mother’s Attorney: I do want to go forward, Your Honor. I have two experts sitting outside since ten o’clock this morning—
Judge: At this point it is not appropriate for me to go forward with this hearing. I am not a dependency judge. I do not have the ability to properly present and listen to the evidence that you want to present. This is not the appropriate forum. This is my ruling. This hearing is over.

The hearing was over in twenty-five minutes, despite the fact that the judge had allotted two hours for the hearing.

Immediately after the hearing, the judge entered a form order entitled “Sua Sponte Dependency Shelter Order.” The order contained the written findings required to place a child in shelter care pursuant to section 39.402(8)(h), Florida Statutes (2011). Among other findings, the judge found that “[t]he child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment.” § 39.402(l)(a), Fla. Stat. (2011). The judge further found that “continuation of the child in the home is contrary to the welfare of the child because the home situation presents a substantial and immediate danger to the child’s physical, mental, or emotional health or safety which cannot be mitigated by the provision of preventive services.” § 39.402(8)(h)3., Fla. Stat. (2011). The order further transferred the case to the Palm Beach County juvenile court. Although the judge stated in the order that the mother was “served with [an] oral statement setting forth a summary of procedures involved in dependency cases [in] Palm Beach County,” the order did not include the time, date, and location of any future hearing to occur in Palm Beach County. See § 39.402(8)(h)6., Fla. Stat. (2011) (“The order for placement of a child in shelter care ... must contain written findings ... [t]hat the court notified the parents ... of the time, date, and location of the next dependency hearing....”).

The following day, that is, October 6, 2011, the mother filed a notice of appeal of the order. Later that day, a review hearing commenced before the Palm Beach County juvenile court judge. The father’s attorney, the guardian, and a Department representative (who was not the investigator) were present. The mother’s attorney and the mother were absent. When the issue of the mother’s absence arose, the father’s attorney represented that “notice was given in open court [yesterday], orally, not in writing ... by [the Department’s investigator] that there would be this hearing today.... [W]e all heard [the investigator] say that there would be a hearing at one thirty today on the third floor of this courthouse.” The father’s attorney later represented, “I can order that transcript, Your Honor, but it was very clear on the record.” Despite that representation, the October 5th transcript now before this court does not contain any such statement by the investigator.

In any event, the Palm Beach County juvenile court judge proceeded with the review hearing. The following exchange occurred between the judge and the Department’s representative:

Representative: [T]he Department’s position on this case is that it is, in fact, a custody order that transferred custody from one parent to another. And that the case law is and the interpretation of Chapter 39 of the statutes is that when a child is placed in the custody of the parent that it is not, in fact, a shelter.
Representative: We would be asking that this case stand until further order of either this court or the family court case in Broward County.
Judge: What do you mean stand?
Representative: Well ... I don’t think I have jurisdiction to ask that it be rescinded or vacated....
Judge: Are you filing a petition for dependency against any parent?
Representative: That has not been decided yet.

The following day, that is, October 7, 2011, the Department filed its notice of intent not to file a dependency petition in the Palm Beach County case. Four days later, on October 11, 2011, the father filed a dependency petition in the Palm Beach County case. The father’s petition referred to the Broward County family court judge’s action on October 5th as a “Sua Sponte Dependency Order placing the minor child in the shelter custody of the Department of Children and Families.” The father’s petition later referred to that order as a “Shelter Order.”

On October 26, 2011, the Palm Beach County juvenile court judge held an arraignment on the father’s petition. The mother entered a denial to the petition. The mother then asked the court whether the father would be required to show probable cause in support of his petition. The judge responded: “There’s already been a probable cause finding.” The mother replied: “There has never been a probable cause determination.” The judge responded: “File a written motion. If there hasn’t been one and it has to be addressed, we will address it.”

Having now addressed the detailed history of the extensive record which the parties have presented, we now turn to the mother’s appeal of the Broward County family court judge’s “Sua Sponte Dependency Shelter Order.” The mother essentially raises two arguments: (1) the Bro-ward County family court judge denied her right to due process by not giving her the opportunity to be heard before entering the order; and (2) the judge had insufficient evidence to find that the mother caused mental injury to the child. The father responds that: (1) the time for the mother to be heard was at the juvenile court review hearing on October 6th and the mother waived the opportunity to be heard by not appearing at that hearing; and (2) there was sufficient evidence to show that the mother caused mental injury to the child.

Before we address the mother’s arguments and the father’s responses in more detail, we must address two preliminary issues: (1) the nature of the order on appeal; and (2) the basis of our jurisdiction.

Regarding the nature of the order on appeal, our colleague in partial dissent concludes that the order on appeal is an order to "take the child into custody pursuant to section 89.401, Florida Statutes (2011), and not an order to place the child in a shelter pursuant to section 39.402, Florida Statutes (2011). According to our colleague, certain handwritten interlinea-tions on the order, and the family court judge’s oral pronouncements as she entered the order, make it clear the judge was issuing an order to take the child into custody, and not a shelter order.

We respectfully disagree with our colleague’s conclusion. Although it is possible that the family court judge’s initial intent at the October 5th hearing may have been to take the child into custody pursuant to section 39.401, the outcome of that hearing was a shelter order pursuant to section 39.402. We conclude this for several reasons: (1) the family court judge asked the Department’s investigator, “Do you need me to sign a shelter order?”; (2) the judge later told the mother’s attorney, “This is an actual shelter”; (3) the order which the judge signed is entitled “Sua Sponte Dependency Shelter Order”; (4) the order’s body, including the judge’s handwritten interlineations, contains the written findings required to place a child in a shelter pursuant to section 39.402(8)(h), Florida Statutes (2011), and Florida Rule of Civil Procedure 8.305(c) (2011); (5) the family court judge apparently transferred the case to the Palm Beach County juvenile court judge pursuant to section 39.402(12), Florida Statutes (2011) (“In the event the shelter hearing is conducted by a judge other than the juvenile court judge, the juvenile court judge shall hold a shelter review on the status of the child within 2 working days after the shelter hearing.”); and (6) the father always has characterized the order on appeal as a “Shelter Order” under section 39.402 and has not suggested that the order was an order to take the child into custody pursuant to section 39.401. We agree with the father’s characterization.

Regarding the basis of our jurisdiction, the mother’s initial brief asserts that we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130 (a) (3) (C) (iii) (2011) (“Appeals to the district courts of appeal of non-final orders are limited to those that ... determine ... the right to immediate ... child custody in family law matters.”). The father’s answer brief does not contest the mother’s jurisdictional assertion. However, given the parties’ and our recognition of the order on appeal as a shelter order, rule 9.130(a)(3)(C)(iii) cannot serve as a basis for our jurisdiction. See Guardian Ad Litem Program v. Dep’t of Children & Families, 972 So.2d 871, 871 (Fla. 4th DCA 2007) (“Rule 9.130(a)(3)(C)(iii), which allows for appeals from orders determining custody in family law matters, does not encompass non-final orders in ... dependency proceedings.”).

Thus, we treat the mother’s appeal as a petition for writ of certiorari, for which we have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(A) (2011) (“The certiorari jurisdiction of district courts of appeal may be sought to review ... non-final orders of lower tribunals other than as prescribed by rule 9.130.”); L.M.B. v. Dep’t of Children & Families, 28 So.3d 217, 218 (Fla. 4th DCA 2010) (accepting jurisdiction of a petition for writ of certiorari seeking to quash the circuit court’s shelter order on the ground that the circuit court refused to permit the parent to present evidence on the issue of whether the child should be removed).

To obtain certiorari relief, the mother must show that the Broward County family court judge: (1) departed from the essential requirements of the law in a manner so serious that it amounts to a miscarriage of justice; and (2) caused irreparable harm which cannot be remedied on appeal following a final order. K.G. v. Fla. Dep’t of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011).

Here, the mother has met both requirements. The judge’s denial of the mother’s request to be heard during the shelter hearing was a departure from the essential requirements of the law. See § 39.402(8)(c)3., Fla. Stat. (2011) (“At the shelter hearing, the court shall ... [g]ive the parents or legal custodians an opportunity to be heard and to present evidence.”) (emphasis added); Fla. R. Juv. P. 8.305(b)(4) (2011) (“At the hearing, all interested persons present shall have an opportunity to be heard and present evidence on the criteria for placement provided by law.”) (emphasis added); K.G., 66 So.3d at 368 (courts consistently have acknowledged that failing to honor a parent’s right to be heard at a shelter hearing is a violation of due process). This departure is so serious that it amounts to a miscarriage of justice. Id. at 368-69.

Further, this departure caused irreparable harm which cannot be remedied on appeal following a final order. If the mother waits to raise this departure until she appeals a final order, “the entire proceeding will have been based on a denial of her due process rights.” Id. at 368.

Florida Rule' of Juvenile Procedure 8.305(b)(3) (2011) did not provide the judge with the authority to deny the mother’s request to be heard. Subdivision (b)(3) provides: “The issue of probable cause shall be determined in a nonadversarial manner, applying the standard of proof necessary for an arrest warrant.” (emphasis added). However, as we held in L.M.B., the right to be heard as provided in section 39.402(8)(c)3. “clearly controls over any perceived conflict within the language in [rule 8.305].” 28 So.3d at 219. We reasoned that “[i]f a parent is not permitted to be heard at the [shelter] hearing, and only [one side’s] evidence will be considered, then the one-sided hearing would be a pointless formality. This is clearly not what the statute or rule contemplates.” Id. (citation omitted). We added that “[t]he statutory right to be heard and to present evidence is buttressed by notions of procedural due process: a parent should have a meaningful opportunity to be heard on the key issue of the need for removal.” Id. (citation and internal quotations omitted).

This case is virtually indistinguishable from the case presented to the first district in KG. There, the first district granted a parent’s petition for writ of certiorari on the basis that the judge denied the parent’s request to be heard at the shelter hearing. As our sister court stated in its summary of the opinion, “[w]e are sympathetic to the [judge’s] desire to conduct an expeditious and informal shelter hearing. However, those concerns do not outweigh the right of parents to be heard initially when faced with removal by the State of their children from their home.” K.G., 66 So.3d at 368-69 (citation and internal quotations omitted).

As mentioned above, the father argues that even if the family court judge erred in denying the mother’s request to be heard, the error was cured because the Palm Beach County juvenile court judge conducted a review hearing on October 6th and the mother waived the opportunity to be heard by not appearing at that hearing.

We conclude that the occurrence of the review hearing did not cure the family court judge’s error for two reasons. First, although the record indicates that the family court judge notified the mother that the shelter review hearing would occur before a juvenile court judge “within twenty-four hours,” the record does not indicate that the family court judge notified the mother of the time and location of the shelter review hearing. § 39.402(8)(h)6., Fla. Stat. (2011); see also Fla. R. Juv. P. 8.305(b)(6)(D) (2011) (“The court shall advise the parent or legal custodian of ... the time, date, and location of the next hearing.... ”). Second, the record from the October 26th arraignment hearing in the dependency proceeding suggests that the juvenile court judge accepted the family court judge’s probable cause finding even though the family court judge denied the mother’s request to be heard during the shelter hearing. Because of the family court judge’s error, the juvenile court judge cannot accept the family court judge’s probable cause finding.

Having concluded that the mother has met the requirements to obtain certiorari relief on her due process argument, we do not reach her argument as to whether the family court judge had sufficient evidence to find that the mother caused mental injury to the child.

We note, however, that during the pen-dency of our review, the father notified this court that the parties entered into a temporary mediation agreement. The agreement allows the mother to have limited contact with the child. The parties dispute whether the mother’s entry into the agreement has preserved or waived her challenge to the Broward County family court judge’s “Sua Sponte Dependency Shelter Order.” We conclude that the mother has not waived her challenge. The face of the agreement states that it is “temporary” and does not state that the mother has waived her challenge.

Based on the foregoing, we remand for the Palm Beach County juvenile court judge, within two working days of our mandate, to conduct a new shelter hearing at which the judge shall give the mother an opportunity to be heard and present evidence if the mother so requests. In order to avoid disruption of the child’s current living arrangements, the parties shall remain bound by the temporary mediation agreement and the child shall remain in the father’s custody pending the new shelter hearing. See E.G. v. Dep’t of Children & Family Servs., 975 So.2d 1244, 1245 (Fla. 3d DCA 2008) (“In order to avoid disruption of the living arrangements of the ... child, the ... child should remain in her current placement pending the shelter hearing.”). At the new shelter hearing, the juvenile court judge retains the discretion to continue the child in a shelter, which may continue to include the father’s custody, if the evidence presented meets one or more of the criteria stated in section 39.402(1), Florida Statutes (2011). See § 39.402(2), Fla. Stat. (2011). If the evidence presented does not meet one or more of the criteria stated in section 39.402(1), then the judge shall order the father to return the child to the mother’s custody.

Petition granted; remanded with directions to the Palm Beach County juvenile court judge.

CIKLIN, J., concurs.

CONNER, J., concurs in part and dissents in part with opinion.

CONNER, J.,

concurring in part and dissenting in part.

I concur with the majority in its determination that the mother is entitled to an expedited shelter hearing with appropriate notice and opportunity to be heard on the issue of probable cause and placement of the child. I respectfully dissent from the majority’s conclusion that the family court judge conducted a shelter hearing and entered a shelter order.

The majority analyzes the order under review as a shelter order issued pursuant to section 39.402, Florida Statutes. I view the order as an order to take the child into custody pursuant to section 39.401, Florida Statutes. I concede the printed form order used by the family court judge has language which gives the appearance of a shelter order, and during the hearing the family court judge made statements to the effect she was entering a shelter order. However, the handwritten interlineations on the printed form and the oral pronouncements of the family court judge as she entered the order make it clear the family court judge did not consider herself as conducting a shelter hearing. Her oral pronouncements indicate she viewed herself as entering a temporary emergency pick up order for the protection of a child.

It is axiomatic that a shelter order is to be entered after a shelter hearing. The majority correctly cites the law in Florida that during shelter hearings judges must give parents an opportunity to contest the probable cause determination and to be heard on the issue of placement of the child. In this case, the mother has not been given an opportunity to be heard at a shelter hearing, and that error needs to be remedied as soon as practical.

As I perceive it, the family court judge heard testimony during a hearing that caused her to conclude there was probable cause to believe a child was being abused or neglected by a parent engaging in severe parental alienation behavior. Sworn testimony came from a protective services investigator for the Department of Children and Families and from a court-appointed guardian ad litem for the child. The family court judge concluded that family court was not the appropriate forum to address the need to protect the child and that dependency court was the more appropriate forum. The family court judge was concerned that the Department did not take appropriate steps to protect the child by initiating a dependency proceeding, so she decided sua sponte to initiate such a proceeding by issuing an order to take the child into custody.

Section 39.01(68), Florida Statutes (2011), defines “shelter” as “placement with a relative or a nonrelative, or in a licensed home or facility ...” (Emphasis added.) Section 39.402(1), Florida Statutes (2011) states:

Unless ordered by the court under this chapter, a child taken into custody shall not be placed in a shelter prior to a court hearing unless there is probable cause to believe that:
(a) the child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment.

(Emphasis added.) This statute specifically authorizes, in appropriate situations, a court to place a child in shelter (with a parent) prior to affording a court hearing to the other parent. Section 39.402(2) further provides:

A child taken into custody may be placed or continued in a shelter only if one or more of the criteria in subsection (1) applies and the court has made a specific finding of fact regarding the necessity for removal of the child from the home and has made a determination that the provision of appropriate and available services will not eliminate the need for placement.

(Emphasis added.) The family court judge’s order in this case complies with these statutory provisions.

Section 39.401, Florida Statutes deals with taking a child into custody. Subsection (1) addresses the circumstances that must exist to take a child into custody. Subsection (1) provides, “A child may only be taken into custody: (a) Pursuant to the provisions of this part, based upon sworn testimony, either before or after a petition is filed.” Thus, the statute authorizes a judge to issue an order to take a child into custody based on sworn testimony, rather than an affidavit or petition. I read the statute to mean that during a hearing judges can sua sponte issue orders to take into custody and place children believed to be dependent and in need of protection into a shelter (with a parent). Consistent with the statute, Rule 8.300, Florida Rules of Juvenile Procedure, deals with taking a dependent child into custody. Subdivision (a) of the rule addresses taking a child into custody based on an affidavit or verified petition. Subdivision (b) addresses taking a child into custody by court order and provides, “The court may issue an order to take a child into custody based on sworn testimony meeting the criteria in subdivision (a).” Rule 8.300(c) outlines the legal requirements for an order to take into custody. It appears the family court judge’s order meets all of the requirements of the rule.

Once a child is placed in shelter (with a parent), section 39.402(8)(a) requires a shelter hearing within 24 hours. Sections 39.402(3), (5), and (8) and rule 8.305 set forth all the notices and rights to a hearing for a parent affected by the order to take in custody. Because the mother was not given the proper notices and the opportunity to be heard at a shelter hearing, she must now be afforded the opportunity to contest the placement of the child with the father as soon as practical. As the majority points out, that includes the right to contest the probable cause determination.

The law grants parents the due process right to participate in a shelter hearing after an order to take into custody has been issued. I find nothing in the law that gives parents a due process right to participate in the decision of a trial judge to issue an order to take a child into custody pursuant to section 39.401, Florida Statutes, even if that decision occurs during a hearing with the parents present.

As the majority points out, a hearing on the father’s emergency motion was set to last for two hours and the family court judge terminated the hearing after twenty-five minutes without affording the mother the opportunity to present anything. Facially that may appear to be procedurally problematic given that there was another hour and a half of hearing time available. Arguably speaking, family court judges need to be prepared to occasionally conduct dependency proceedings, and the judge in this case had the time to conduct a full shelter hearing. However, the Department of Children and Families is typically involved as a party in dependency proceedings, and the judge in this case felt the Department should be involved. The Department’s representative at the hearing indicated that if the judge entered the order to take into custody, the Department would probably file a dependency action. It seems likely the judge decided she could not proceed with a shelter hearing because a lawyer for the Department was not present.

I would grant the petition and order the trial court to conduct a proper shelter hearing within two working days from the issuance of our mandate, but I would not construe the order under review as a shelter order.

      . Nothing in this opinion should be construed as suggesting that a judge conducting a shelter hearing cannot proceed without hearing from a parent who does not appear after having been "given such notice as best ensures their actual knowledge of the date, time, and location of the shelter hearing.” § 39.402(5)(a), Fla. Stat. (2011). This opinion merely addresses the requirements when the parent appears at a shelter hearing and requests to be heard.
      Also, this opinion does not address a question which our colleague's partial dissent appears to raise, that is, whether a parent has a due process right to be heard when a family court judge, at a hearing at which the parent is present, considers taking a child into custody pursuant to section 39.401, Florida Statutes (2011), and: (1) the parent requests to be heard; (2) time is available on the court’s calendar at which the parent can be heard; and (3) no harm can come to the child while the parent is being heard.

      . This case points out a common problem: when judges do not regularly sit in dependency proceedings they sometimes forget the technical difference between an order to take into custody and a shelter order.

      . As the majority points out, the mother was not given proper notice of the date, time, and place of the shelter hearing which the family court judge contemplated when she issued the order to take the child into custody. The failure to give proper notice of the shelter hearing may have occurred from the combination of two circumstances: the Department of Children and Families did not seek the order to take into custody, and the venue for the dependency proceeding was an adjoining county. Although the Department was not a party to the proceedings at the time the order was entered, sections 39.402(3) and (5)(a), Florida Statutes, require the Department to notify the parents of their rights and the date, time, and location of the shelter hearing.


text:
    Pharaoh NSHAKA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2835.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Pharaoh Nshaka, appeals the trial court’s final order imposing judgment of convictions of burglary and robbery and a sentence of thirty years in prison as a habitual felony offender. Nshaka raises issues on appeal as to the introduction of evidence of similar crimes and the trial court’s denial of his motion to suppress evidence. We agree with Nshaka that the trial court erroneously allowed evidence to be admitted when the similarities of the evidence to his case were far outweighed by the differences. We disagree with Nshaka’s assertion that the trial court erred when it denied his motion to suppress evidence because Nshaka exercised dominion and control over the searched premises, appearing to have common authority to give consent. However, in light of our holding that the trial court erred in allowing certain evidence to be introduced, we remand for retrial.

The victim of the case on appeal was assaulted and robbed outside of Calvary Kid’s Preschool on Stirling Road near Hollywood, Florida. After the victim was pushed to the ground, the assailant, allegedly Nshaka, broke the passenger window on the victim’s Plymouth Voyager and took her purse and a television with a DVD player. Within twenty minutes of the incident, the victim’s credit card was used at a gas station and another location in Hollywood, Florida. A few months later, the victim noticed a white Ford Taurus driving through the preschool’s parking lot and recognized the driver as the same person who robbed her, though her assailant had arrived on foot. The victim recorded the license plate number of the Taurus and filed a police report indicating as such. According to police officers, the original tag number given by the victim was incorrect and officers changed the number around until they received a hit identifying Nshaka as the registered owner of the vehicle. The victim was given the opportunity to attempt to identify her attacker in a photograph line-up and identified Nshaka without hesitation. Nshaka was charged by information with burglary of a conveyance with a battery and strong arm robbery.

The State filed a written notice of intent to offer evidence of other crimes, wrongs or acts, pursuant to section 90.404(2)(a), Florida Statutes. The evidence consisted of two other vehicle burglaries in the area in order to show opportunity, intent, absence of mistake, and motive of Nshaka. The court ruled that such evidence was admissible to show the similarities between all three incidents, including the victims, the items stolen, and the sightings of a white Ford Taurus in the parking lot where the burglaries occurred.

One earlier victim testified that as she pulled into a church parking lot to drop her children off at school, she noticed a white vehicle, later identified by the victim as a white Ford Taurus, driving around and then parking. The vehicle’s sole occupant, a black male, was sitting in the driver’s seat. After she dropped her children off inside, she came back out and realized her purse was stolen from her truck. The credit cards that were inside the stolen purse were used shortly thereafter in Hollywood and Pembroke Pines, Florida. After the incident was reported to police, a photograph line-up was created in which this victim immediately identified Nshaka as the suspicious person inside the white vehicle. Another earlier victim testified that she left her purse on the passenger side front seat as she brought her daughter into preschool. When she returned to her vehicle approximately twenty minutes later, she noticed her purse was missing. A credit card that was in the purse was used almost immediately thereafter at a gas station in Pembroke Pines, Florida.

Nshaka filed a motion to suppress items seized by officers from Nshaka’s vehicle, which was denied by the trial court. The trial court reasoned that the defendant was properly identified, was placed under arrest, and was the only occupant of the vehicle at the time of the arrest. The residence at 420 North 59th Avenue was also searched because a key to the home was confiscated at the time of Nshaka’s arrest and officers obtained his consent to search. When officers arrived at the address, they noticed several items in plain view, including a bill with Nshaka’s name on it. The lead detective then obtained a search warrant for the address. In a child’s bedroom during the search, officers discovered a box that contained documents and other items which were meticulously cataloged. None of the belongings of the victim from this case were found in the box.

Nshaka was convicted of burglary and robbery. He was sentenced as a habitual felony offender to thirty years in state prison on each count, to be served concurrently with the other related cases. This appeal followed.

An appellate court reviews the trial court’s admission of evidence for abuse of discretion. Padgett v. State, 73 So.3d 902, 904 (Fla. 4th DCA 2011). The trial court’s discretion “ ‘is limited by the rules of evidence.’ ” Id. Our supreme court has provided that admission of evidence of other crimes is presumptively harmful because the evidence from the other cases, which is irrelevant to the current case, could be used by a jury to charge a defendant. Robertson v. State, 829 So.2d 901, 913-14 (Fla.2002). However, the Williams Rule, from the 1959 Supreme Court of Florida case Williams v. State, 110 So.2d 654 (Fla.1959), codified by section 90.404(2)(a), Florida Statutes, provides that:

Similar fact evidence of other crimes, •wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2011); see also DeLuise v. State, 72 So.3d 248, 251 (Fla. 4th DCA 2011).

Under the Williams Rule, two determinations must be made by the trial court: “ ‘(1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice.’ ” DeLuise, 72 So.3d at 251. For evidence to be properly admitted under the Williams Rule, ‘[t]here must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant, the points of similarity must have some special character or be so unusual as to point to the defendant.’ ” Chambers v. State, 692 So.2d 210, 211 (Fla. 5th DCA 1997).

Nshaka argues that there were dissimilarities between the collateral cases, including the fact that the victim in the instant case was violently attacked, whereas the victims in the other burglaries were not at their vehicles at the times their purses were taken. The victim in this case was robbed on April 20, 2006, while the other two victims were burglarized on June 1, 2006 and June 5, 2006. This victim’s attacker arrived on foot, yet the burglar from the other two cases drove up in a Ford Taurus. Physical evidence belonging to the victim was never recovered, but evidence belonging to the other two victims was found and returned.

The State, on the other hand, contends that there were several similarities between the crimes, which made admission of the Williams Rule evidence proper. The incidents were within five weeks of each other; all victims were females with minor children; all incidents occurred at preschools associated with religious establishments; all incidents occurred on Stirling Road in Broward County; the schools were all within three miles of one another; all incidents took place as the victims were dropping children off at school; all vehicles that were burglarized contained car seats; all victims left their purses in their vehicles as they dropped their children off inside; all incidents were vehicular burglaries; credit cards belonging to each victim were used at gas stations immediately thereafter; Nshaka was identified in some way by each victim; and the property belonging to the Williams Rule witnesses was found at the 59th Avenue address.

The State relies specifically on Corinthian v. State, 761 So.2d 1180 (Fla. 4th DCA 2000), to support its position that the collateral crime evidence was properly admitted. In Corinthian, collateral crime evidence was introduced in a case involving a robbery with a firearm. Id. at 1180. This court found that collateral evidence was properly admitted where numerous similarities existed between the collateral crimes and the charged crimes. Id. This court further found that the dissimilarities were so insignificant as to not affect the magnitude of the similarities. Id. In Corinthian, this court also distinguished a Fifth District Court of Appeal case, Chambers, 692 So.2d 210, to explain why collateral crime evidence may be inadmissible. Corinthian at 1180-81. In Chambers, there were several separate hotel robberies for which the defendant was convicted. Chambers, 692 So.2d at 211. At trial, the State introduced evidence from another robbery to establish identity. Id. The Fifth District held that collateral crime evidence should not have been admitted because there was no signature feature or unique manner in which the offenses were committed. Id. at 212.

Here, similar to Chambers, the current robbery charge did not occur close in time with the collateral crimes and the crime occurred in a very different manner than the two previous burglaries. As provided in Chambers, “the points of similarity must have some special character or be so unusual as to point to the defendant.’ ” Id. at 211. The only similarities here are that females’ purses, left unattended in vehicles, were stolen from outside preschools on a major road in South Broward County and that a black male was identified as the suspect. The facts which would have made the current crime and collateral crimes unique in manner, such as physical assault, the white Ford Taurus being seen at the time of the incidents, and the belongings of all victims being found at the 59th Avenue residence, did not exist. This robbery case lacked any “signature feature” which would have provided a link between it and the earlier burglaries. Therefore, we hold that the introduction of collateral crime evidence under the Williams Rule was inappropriate where the current crime and the collateral crimes were too dissimilar to identify Nshaka as the proper defendant.

Additionally, Nshaka argues that officers did not have a reasonable basis to assume that he had authority to consent to a search of the 59th Avenue residence and sought to suppress the evidence seized during the search. The State contends that officers reasonably believed that Nshaka had control over the residence due to surveillance they conducted for approximately three days.

An appellate court reviews a motion to suppress using a mixed standard of review. Bryan v. State, 62 So.3d 1244, 1245 (Fla. 4th DCA 2011). The appellate court defers to the trial court’s findings regarding the facts and uses the de novo standard of review for legal conclusions. Id.

“Warrantless searches ‘are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” Ferguson v. State, 58 So.3d 360, 363 (Fla. 4th DCA 2011). One exception to the warrant requirement is if officers obtain voluntary consent by one who has permission to search the premises. Id. The person who gives consent may be a third party with “ ‘common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ ” Id. Common authority exists where people have joint control over property for most purposes. Id. at 364 (citing United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). Where no actual authority exists, officers may rely on their reasonable beliefs that the person who gave them consent is a resident with control over the premises. Id.

Here, officers ran Nshaka’s license plate and received a return, including an address of 5900 Hayes. When Nshaka was placed under surveillance for about three days, officers traced him to the 59th Avenue address. Upon asking if they could search the location, Nshaka provided them with a house key and agreed to a search. At the time they entered the premises, officers had Nshaka’s permission, supported by knowledge that he had a key to the premises and had been coming and going from that location for the nearly three days of surveillance. Additionally, there were utility bills with Nshaka’s name in plain sight inside the home. Based on these facts, we hold that it was reasonable for officers to believe that Nshaka had dominion and control over the property and was able to give consent for a search of the premises. As such, the trial court did not err in its denial of Nshaka’s motion to suppress evidence seized from the 59th Avenue address.

Therefore, while we affirm the trial court’s denial of Nshaka’s motion to suppress evidence, we hold that the trial court improperly allowed the admission of Williams Rule evidence where the similarities between the evidence were substantially outweighed by the dissimilarities. Accordingly, we remand this case for retrial.

Affirmed; Remanded for Retrial.

TAYLOR and HAZOURI, JJ., concur.

      . Officers also conducted a three-day surveillance on Nshaka before his arrest and he was seen going to and from the 59 th Avenue address during that time.


text:
    Homer Boyd KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1389.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

POLEN, GROSS and CONNER, JJ., concur.


author: LaROSE, Judge.

text:
    Robert NUCCI, M.D., Appellant, v. STORM FOOTBALL PARTNERS a/k/a collectively Thomas Begley, individually; Jay Mize, individually; Doug Graber, individually; and Eric Snow, individually, Appellees.
    No. 2D10-1838.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.

      Steven G. Burton, Mercedes G. Hale, and Nancy J. Stewig of Broad & Cassel, Tampa, for Appellant.
    Brandon S. Vesely, Michael J. Keane, and Nicole M. Clausing of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellees.
   LaROSE, Judge.

Robert Nucci, M.D., appeals a final judgment confirming an arbitration award of over $3.5 million in favor of Storm Football Partners (the Partners). We have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A). We review the final judgment confirming the arbitration award for “‘an abuse of extremely limited discretion.’ ” Murton Roofing Corp. v. FF Fund, Corp., 930 So.2d 772, 773 (Fla. 3d DCA 2006) (quoting Commc’ns Workers of Am. v. Indian River County Sch. Bd., 888 So.2d 96, 99 (Fla. 4th DCA 2004)). We find no merit to Dr. Nucci’s argument that the Partners waived the right to arbitrate by suing him for injunctive relief in the trial court and conducting discovery in that case. The Partners exercised their rights in accordance with their confidentiality, nondisclosure, and noncircumvention agreement (the Agreement) with Dr. Nuc-ci; they did not waive their right to arbitrate. Thus, we affirm.

The Partners formed in 2005 to purchase the Tampa Bay Storm arena football team. Some two years later, Dr. Nucci, having an interest in becoming a part owner of the Storm, sought to review the Partners’ confidential business information. He and the Partners entered into the Agreement, after which the Partners provided the requested information to Dr. Nucci.

The Agreement provided in pertinent part as follows:

6. You agree that the remedy at law of the Partners would be inadequate as to any unauthorized use or disclosure of the [confidential [information by you and agree that the Partners shall be entitled to preliminary and permanent injunctions in any court of competent jurisdiction to prevent such unauthorized use or disclosure by you.
7. You agree that if circumvention of the Partners to acquire or invest in the Storm occurs, the damages will be calculated as thirty percent of the value of the price paid to purchase the franchise. This percentage represents Partners’] projected ownership of the franchise at acquisition.
9. Any dispute or controversy arising under or in connection with this Agreement shall be settled by binding arbitration, which shall be the sole and exclusive method of resolving any questions, claims or other matters arising under or related to this Agreement. Such proceedings shall be conducted by contractual final and binding arbitration before one mutually agreed upon arbitrator under the administration of the American Arbitration Association (AAA) in St. Petersburg, Florida. The federal and state courts in Florida are hereby given jurisdiction to render judgment upon, and to enforce, each arbitration award, and the parties hereby expressly consent and submit to the jurisdiction of such courts.

The Agreement also provided that Dr. Nucci would not “directly or indirectly, either alone or with one or more parties, seek to acquire or invest in the Storm, without the prior written consent of the Partners.”

Shortly after he signed the Agreement and received the confidential business information, Dr. Nucci began direct negotiations with the Storm’s owner, unbeknownst to the Partners. He wrote to the Partners in an effort to terminate the Agreement. The Partners consented to the termination. They reminded Dr. Nucci, however, that he was precluded, for one year, from acquiring or investing in the Storm without their consent. The Partners also demanded the return of the confidential business information; Dr. Nucci failed to comply. He asked the Partners to release him from the Agreement; they declined his request. He continued to negotiate with the owner to buy the Storm.

Eventually, Dr. Nucci acquired a fifty-one percent interest in the Storm for over $9.6 million. He could acquire the remaining forty-nine percent in two future closings for a total purchase price of over $18.8 million. Allegedly, Dr. Nucci used the Partners’ confidential business information to orchestrate his acquisition. The Partners took action.

On the same day they sued for injunc-tive relief in the trial court, the Partners initiated an arbitration proceeding for damages. Dr. Nucci asked the arbitrator to dismiss the arbitration. He argued that the Partners waived their right to arbitrate by suing him in the trial court. The arbitrator refused to dismiss the arbitration. He concluded that paragraphs six and nine of the Agreement contemplated that the parties could simultaneously pursue damage claims in arbitration and in-junctive relief in the trial court. Dr. Nucci and the Partners then agreed that they could use discovery obtained in the injunction case in the arbitration:

The parties stipulate to the use of depositions, answers to interrogatories, and responses to requests for admissions taken in connection with the pending companion civil case. The arbitrator may be asked to determine the admissibility of these items on other grounds.

Our review of the record reflects that the trial court discovery was limited to the Partners’ claim for injunctive relief.

The parties proceeded with a final arbitration hearing. Dr. Nucci lodged no objection and did not renew his motion to dismiss the arbitration. The arbitrator entered a substantial damage award in favor of the Partners. They asked the trial court to confirm the arbitration award. See § 682.01, Fla. Stat. (2008) (providing that sections 682.01-.22 comprise the “Florida Arbitration Code”); § 682.12 (providing for confirmation of an award by court). Dr. Nucci asked the trial court to vacate the award. See § 682.13(1). He argued to the trial court that the Partners waived their right to arbitrate by suing him for injunctive relief. In Dr. Nucci’s view, the arbitrator exceeded his power by proceeding despite the Partners’ waiver. See § 682.18(l)(c) (providing in pertinent part that a court shall vacate an arbitration award if “[t]he arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers”). Further, according to Dr. Nucci, the Partners’ waiver compelled the conclusion that no valid arbitration agreement remained. See § 682.13(l)(e) (providing that an arbitration award shall be vacated when “[tjhere was no agreement or provision for arbitration subject to this law ... unless the party participated in the arbitration hearing without raising the objection”).

Section 682.13(1) provides limited grounds to vacate an arbitration award. See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989). When an arbitration award encompasses the issues submitted to arbitration and the arbitrators have committed no conduct proscribed by the arbitration statute, the award operates as a final and conclusive judgment. Id. at 1328; see also § 682.15. Absent a basis to vacate, the trial, court must confirm. Noriega, 542 So.2d at 1328 (citations omitted). Under section 682.13(1)(c), the arbitrator exceeds his power only when he exceeds the authority the parties granted him in their agreement to arbitrate. Noriega, 542 So.2d at 1329. For example, an arbitrator may very well exceed his authority when he decides an issue that is not pertinent to resolving the issue submitted to arbitration. Id. at 1329.

Dr. Nucci consented to arbitration by submitting the waiver issue to the arbitrator in the first instance. See LeNeve v. Via South Florida, L.L.C., 908 So.2d 530, 534-35 (Fla. 4th DCA 2005) (explaining that “an arbitrator’s jurisdiction derives from the parties’ agreement and can broaden during the course of arbitration ‘by waiver, failure to object and consent.’ ”) (quoting City of West Palm Beach v. Palm Beach Cnty. Police Benevolent Ass’n, 387 So.2d 533, 534 (Fla. 4th DCA 1980))). He asked the arbitrator to decide whether the Partners’ lawsuit for injunc-tive relief was inconsistent with the right to arbitrate. Dr. Nucci asked the arbitrator, not the trial court, to dismiss the arbitration. He did not succeed in that forum. He raised this issue with the trial court after the conclusion of the arbitration in which he suffered an adverse award. Having elected to proceed before the arbitrator, Dr. Nucci cannot claim that the arbitrator exceeded his authority. See Federated Dep’t Stores, Inc. v. Pavarini Constr. Co., 425 So.2d 1212, 1213 (Fla. 4th DCA 1983) (stating that “the question whether arbitration has been waived may be decided by a court unless one of the parties contends the waiver question should be answered by the arbitrators in which case it should be answered by the arbitrators”); see also City of Mount Dora v. Cent. Fla. Police Benevolent Ass’n, 600 So.2d 520, 521-22 (Fla. 5th DCA 1992) (affirming trial court’s denial of motion to vacate arbitration award; arbitrator did not exceed his powers when he decided procedural arbitrability issue); see also Harris v. Haught, 435 So.2d 926, 928 (Fla. 1st DCA 1983) (holding that voluntary submission of issue to arbitrator without objection as to arbitrator’s jurisdiction forecloses that argument on appeal). We also note that the Agreement, save for injunc-tive relief, does not limit the issues that the parties agreed to arbitrate.

Dr. Nucci has shown no basis for relief. The trial court’s orders denying his motion to vacate and confirming the arbitration award, as well as its final judgment, are affirmed in all respects.

Affirmed.

WHATLEY and CRENSHAW, JJ., Concur.

      . Dr. Nucci also argues that the Partners are not entitled to liquidated damages. In light of our determination that a valid arbitration agreement exists and the arbitrator acted within his powers, we find this argument meritless and do not discuss it further.


author: NORTHCUTT, Judge.

text:
    Frederick W. HEUSTIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1039.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Frederick Heustis appeals his criminal convictions, arguing that the circuit court erred in denying his motion to withdraw his plea after sentencing. We agree and reverse.

Heustis was charged with three counts of aggravated assault. He entered a negotiated, no contest plea to one count of aggravated assault and two counts of the lesser charge of improper exhibition of a firearm. He was adjudicated guilty and placed on three years’ probation. Heustis later filed a motion alleging that his plea was involuntary because it was induced by counsel’s misadvice regarding the plea’s effect on his civil rights. At a hearing on the motion, Heustis testified that he would not have entered his plea if he had known that he would be classified as a felon and would lose his civil rights, including his right to vote. He further testified that his attorney affirmatively misled him into believing that his plea would not have these consequences. No other testimony was presented.

The circuit court concluded that the right to vote was a collateral consequence of the plea, and it denied Heustis’s motion. But the court failed to appreciate that a defendant’s plea can be involuntary when it is based on counsel’s misadvice about even a collateral consequence. See Ey v. State, 982 So.2d 618, 622 (Fla.2008) (noting that counsel’s positive misadvice on collateral matters may justify withdrawal of a plea); see also Chandler v. State, 1 So.3d 284, 288 (Fla. 2d DCA 2009) (same).

Accordingly, we reverse and remand for additional proceedings on the motion to withdraw plea. We note that should Heustis persist and ultimately succeed in withdrawing his plea, he again could face charges of aggravated assault for all three counts. See Geiger v. State, 532 So.2d 1298, 1300 (Fla. 2d DCA 1988) (pointing out that defendant may face original charges when a plea is withdrawn).

Reversed.

CRENSHAW and BLACK, JJ„ Concur.


text:
    Angus N. KELLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6903.
    District Court of Appeal of Florida, First District.
    March 12, 2012.
    Angus N. Kelley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Angus N. Kelley is hereby afforded belated appeal from the order of the Circuit Court for Calhoun County which denied postconviction relief in its case number 07-032. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Anthony L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6326.
    District Court of Appeal of Florida, First District.
    March 12, 2012.
    Anthony L. Williams, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant’s appeal is hereby dismissed as duplicative to the appeal proceeding in case 10-5288. The denial of the appellant’s rule 3.800(b)(2) motion will be reviewed in that case.

DISMISSED.

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


text:
    Rodger BUTLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4793.
    District Court of Appeal of Florida, First District.
    March 12, 2012.

      Rodger Butler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Rodger Butler is hereby afforded a belated appeal from judgment and sentence in Columbia County case number 2010-856-CF. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the lower tribunal who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

The lower tribunal is directed to appoint counsel to represent appellant in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

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


text:
    Genaro CASILLA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4427.
    District Court of Appeal of Florida, First District.
    March 12, 2012.
    Genaro Casilla, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Genaro Ca-silla is hereby afforded a belated appeal from judgment and sentence in Gadsden County Case Number 11-18-CF. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

The circuit court shall appoint counsel to represent Casilla in the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

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