text:
    Elsie BERRY and Carl D. Berry, Appellants, v. David PADDEN, M.D. and Lighthouse Orthopedic, Appellees.
    No. 4D11-779.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Carl D. Berry of Berry, Clark & Wild-man, Coral Springs, for appellants.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellees.
   PER CURIAM.

The plaintiffs below, Elsie and Carl Berry, challenge the trial court’s order dismissing their complaint with prejudice for failure to comply with the mandatory pre-suit requirements of a medical malpractice action. We affirm, because the plaintiffs failed to provide a verified written medical expert opinion prior to the expiration of the statute of limitations.

On November 24, 2008, the plaintiffs filed suit against Elsie’s doctor, David Pad-den, M.D., and Lighthouse Orthopedic Associates, P.A., alleging that Dr. Padden committed medical malpractice by improperly installing an “oversized tibial component” when he performed Elsie’s knee replacement surgery on April 27, 2006. The plaintiffs attached to their complaint a Certification of Counsel, which stated that “after reasonable investigation there are grounds for a good faith belief that there has been negligence in [the] care of plaintiff against each named defendant upon receipt of written opinion of an appropriate expert defined by 766.102 that there appears to be evidence of medical negligence.” The “written opinion” referenced in the Certification of Counsel was a letter from an orthopedic surgeon, Dr. Christopher J. Cassels. The letter was neither sworn, notarized, nor otherwise verified. Subsequently, the plaintiffs provided and filed a verified written opinion by Dr. Cas-sels on May 19, 2009.

Shortly thereafter, on May 29, 2009, the defendants moved to dismiss or stay the complaint for failure to comply with the statutory presuit screening requirements. The motion alleged, among other things, that the plaintiffs failed to provide a “verified written opinion corroborating the reasonable grounds for initiating medical negligence” litigation. The trial court granted the motion and dismissed the case with prejudice, stating: “Plaintiff failed to provide a verified written medical expert opinion pursuant to Florida Statute § 766.203 within 180 days of October 31, 2008 which is the date of [the] Statute of Limitations.” The plaintiffs appealed the dismissal.

We note, at the outset, that the defendants have not challenged the content of the original letter from the plaintiffs’ medical expert, but rather its lack of verification. The controlling statutes are as follows.

Section 766.203(2), Florida Statutes (2006), provides:

Presuit investigation by claimant.— Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert ... at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

(Emphasis added).

Additionally, section 766.206(2), Florida Statutes (2006), provides:

If the court finds that the notice of intent to initiate litigation mailed by the claimant is not in compliance with the reasonable investigation requirements of ss. 766.201-766.212, including a review of the claim and a verified written medical expert opinion by an expert witness as defined in s. 766.202, the court shall dismiss the claim....

(Emphasis added).

The law is well-established that a properly verified, corroborating medical expert opinion must be provided by the plaintiff to the defendant prior to expiration of the statute of limitations. See, e.g., Maguire v. Nichols, 712 So.2d 784, 785 (Fla. 2d DCA 1998) (citations omitted) (stating “[t]he case law is clear: The failure to file a properly verified medical opinion letter is not fatal to a plaintiffs cause of action as long as the requirement is met before the expiration of the statute of limitations”); see also Popps v. Foltz, 806 So.2d 588, 584-85 (Fla. 4th DCA 2002) (holding that the failure to comply with the statutory presuit requirements does not warrant a dismissal with prejudice if the statute of limitations has not yet run); Hoeltzell v. Erenstoft, 985 So.2d 636, 636-37 (Fla. 4th DCA 2008) (holding that physician’s pro se response to a complaint was properly stricken for failure to comply with presuit screening requirements); Archer v. Maddux, 645 So.2d 544, 547 (Fla. 1st DCA 1994) (holding that the plaintiffs failure to file a corroborating medical expert opinion prior to the expiration of the statute of limitations justified the dismissal of her complaint with prejudice); Cent. Fla. Reg’l. Hosp. v. Hill, 721 So.2d 404, 406 (Fla. 5th DCA 1998) (holding that the trial court departed from the essential requirements of the law when it refused to dismiss the plaintiffs complaint for failure to attach a corroborating, verified medical expert opinion); Suarez v. St. Joseph’s Hosp., Inc., 634 So.2d 217, 219 (Fla. 2d DCA 1994) (noting that failure to file a verified medical opinion is not fatal to a claim if “compliance is secured prior to the expiration of the appropriate statute of limitations”).

In this case, the plaintiffs provided the defendants with only an unverified, corroborating medical expert opinion prior to the expiration of the statute of limitations. Accordingly, we affirm the trial court’s order dismissing the plaintiffs’ complaint with prejudice for failure to provide a properly verified corroborating expert opinion prior to the expiration of the statute of limitations.

Affirmed.

POLEN, TAYLOR and HAZOURI, JJ., concur.

      . Defendants provided a chronology of the relevant dates in their answer brief, as follows:
      4/27/06 Surgery performed by Dr. Padden
      10/4/06 Berry visits another physician for a second medical opinion
      10/22/06 Berry is advised to have further surgery
      10/31/06 Berry undergoes additional surgery
      8/21/08 Beriy send purported presuit notice of intent
      10/27/08 Berry's expert, Dr. Cassels (orthopedic surgeon), writes an unverified, one page letter to Berry
      11/24/08 Complaint is filed
      11/11/08 Berry sends Dr. Padden a copy of Dr. Cassels’ 10/27/08 letter
      1/29/09 Expiration of statute of limitations (calculated as 2 years from 10/31/06 + 90 day presuit)
      3/30/09 Expiration of statute of limitations (calculated as 2 years from 10/31/06 + 90 day presuit + Automatic 60 day extension, if it is assumed applicable)
      5/12/09 Execution of "verified written expert opinion” of Dr. Cassels, Berry’s expert.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    PRIME HOMES, INC., a Florida corporation, Prime Homes at Portofino Preserve, Ltd., a Florida Limited Partnership, and Portofino Preserve Builders, Inc., a Florida corporation, Appellants, v. PINE LAKE, LLC, a Florida limited liability company, Appellee.
    No. 4D10-4395.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.

      Richard Sarafan and Nancy E. Bergold of Genovese Joblove & Battista, P.A., Miami, for appellants.
    Irene Oria and Paul A. Shelowitz of Stroock & Stroock & Lavan LLP, and Jeffrey P. Shapiro of Shapiro Ramos PA, Miami, for appellee.
   POLEN, J.

Appellant, Prime Homes, Inc. (“Prime Homes”), appeals the final judgment entered by the trial court in favor of appel-lee, Pine Lake, LLC (“Pine Lake”). The final judgment ordered that Prime Homes had breached a contract with Pine Lake and awarded Pine Lake monetary damages. The court also imposed a vendor’s lien on the property. The contract in question contained a clause which the trial court declared ambiguous, but after allowing parol evidence to be admitted, the trial court modified the language and found that the ambiguity was resolved. We agree with the trial court as to its resolution of the contractual language and affirm as to that point, but we disagree with the trial court’s imposition of a vendor’s lien and, therefore, reverse as to that point and remand for entry of a modified final judgment.

Pine Lake and Oslo Road Ventures, Ltd. (“Oslo Road”) entered into a contract under which Pine Lake would purchase an eighty-three acre parcel of land from Oslo Road. The property Pine Lake agreed to purchase was located in Vero Beach, Indian River County, Florida and was zoned as residential in part and commercial in part. Under the contract, Pine Lake was to make deposits in the amount of $375,000 toward the sale amount and the parties were to close on the property on July 27, 2005. However, on July 5, 2005, before the closing date, Pine Lake assigned its interest in the contract to Prime Homes to avoid forfeiting and losing its entire deposit.

During negotiations, Prime Homes stated that it conceptualized 188 lots on the property and it was going to seek approval from Indian River County to create as many 70' x 120' lots as possible for the residential development it was building. The parties reached an agreement as to a price per lot cost that Prime Homes would pay the seller, Oslo Road. The parties determined during their negotiation that Indian River County would likely approve, at minimum, 166 lots. With that number in mind, the parties multiplied the cost per lot times the minimum number of approved lots, then subtracted the original purchase price from that amount, resulting in a down payment of $229,574.68 to be paid by Prime Homes to Oslo Road.

The agreement for assignment of sale and purchase agreement (“assignment agreement”) states in relevant part:

2.a. Purchase Price on Assignment. The purchase price for the Assignment (the “Assignment Price”) payable by Purchaser to Seller is the sum of Two-Hundred-Twenty-Nine-Thousand-Five-Hun-dred-Seventy-Four-68/100 ($227,-574.68) Dollars, plus a sum equal to all deposits Seller has previously tendered to Owners (the “Deposits”) (for which Purchaser shall receive full credit against the purchase price under the Main Contracts) ....
b. Additional Purchase Price. In addition to the Assignment Price set forth above, Purchaser shall pay to Seller an additional amount derived at by multiplying $46,382.98 times the number of lots having dimensions of 70 x 120, which exceed 166 lots (Additional Assignment Fee) on the site plan for the Property Purchaser ultimately has approved by Indian River County (Approved Site Plan). By way of example only, should the Approved Site Plan have 180 lots of 70 x 120 lots, the Additional Assignment Fee shall be $649,361.72 (14 lots in excess of 166 lots x $46,382.98).
The Purchase Price (together with the Additional Purchase Price, [a]s applicable) shall be paid to Seller within five (5) days from the date day that Purchaser obtains final site plan approval for the development of the Property from Indian River County. Additionally, and simultaneously with the payment of the Purchase Price to Seller, Purchaser shall also convey to Seller the Commercial Property identified by the Parties as an exhibit hereto.

Additionally, section twelve of the assignment agreement provided:

Default by Purchaser. If Purchaser shall default in the performance of any of the terms and conditions of this Agreement, Seller shall have, as its remedy, the right to proceed in equity to enforce specific performance against the Purchaser hereunder, if such remedy is sought by Owner against Seller. In the event that a default occurs after the Closing of the Main Contract, Seller shall have the right to record a lien on the Residential Property as security for the payment of the Purchase Price.

On July 22, 2005, Prime Homes closed on the property by purchasing the eighty-three acre parcel directly from Oslo Road. Prime Homes took out a mortgage on the property to assist with the financing of the project for which they purchased the land. Almost a year later, Prime Homes received approval of its preliminary plat application by Indian River County for 178 lots. Out of the 178 approved lots, 144 of those lots had dimensions that were equal to or greater than 70' x 120'.

When Portofino Preserve, a company to which Prime Homes assigned its right, title, and interest, did not pay twelve times the cost per lot to Oslo Road, Pine Lake filed suit against Prime Homes, alleging breach of the parties’ assignment agreement. Pine Lake amended its complaint and, in its second amended complaint, it added a count seeking imposition of a vendor’s lien against the property to secure payment of the purchase price. Moreover, Pine Lake sought to relate the vendor’s lien back to July 17, 2006, the date on which the alleged breach occurred. In its answers and affirmative defenses, Prime Homes denied its obligation to pay Oslo Road for the twelve lots over 166 because 166 of the approved lots were not specifically measured at 70' x 120' and final approval had not been received.

A non-jury trial was held. It was undisputed that several of the lots were less than 70' x 120'. A witness for Pine Lake testified that the assignment agreement contained a mistake where the word “typical” was missing in regards to the 70' x 120' lot, meaning that a lot that was slightly smaller would be “typically” 70' x 120' and count toward the 166 minimum. Pine Lake also provided that preliminary plat approval is equivalent to final site plan approval because it means the County Board of Commissioners approved the lots and verified that a project is allowed. In addition, Pine Lake admitted that the approval is subject to changes, including lot numbers and dimensions.

Prime Homes moved for a directed verdict after Pine Lake’s case in chief was presented. The motion was denied. When Prime Homes began to present its case, Pine Lake advised the trial court that it “would be seeking a vendor’s lien relating back to June 5, 2005, the date of the Assignment Agreement.” A final judgment was entered in favor of Pine Lake, finding that section 2(b) of the assignment agreement was ambiguous. Based on extrinsic evidence, the court found that the assignment agreement required Portofino Preserve to pay the additional amount for the twelve lots over 166. The court further found that the preliminary plat approval was final enough to trigger the obligation of Prime Homes’ assignee, Por-tofino Preserve, to pay Oslo Road within five days. The court ruled that Prime Homes breached its assignment agreement by failing to pay the additional purchase price and convey commercial property back to Pine Lake. The court determined that the assignment agreement required reformation to reflect the true intent of the parties — to pay an additional price for each “typical” 70' x 120' lot that exceeds 166 lots. The court also imposed a vendor’s lien against the property, relating “back to ‘the time of the transaction from which it sprung,’ ” which the court found to be the date of the assignment agreement— July 5, 2005. Prime Homes filed a motion for new trial, rehearing, and reconsideration, which the trial court denied. This appeal followed.

A trial court’s interpretation of a contract is reviewable by this court under a de novo standard of review provided the language is clear and unambiguous and free of conflicting inferences. In such case of ambiguity, the existence of the ambiguity is a question of law, and the ambiguity must be resolved as a question of fact.

Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., 981 So.2d 654, 655 (Fla. 4th DCA 2008) (quoting N. Star Beauty Salon, Inc. v. Artzt, 821 So.2d 356, 358 (Fla. 4th DCA 2002)). Ambiguities exist when a document can reasonably be interpreted as having more than one meaning. Smith v. Shelton, 970 So.2d 450, 451 (Fla. 4th DCA 2007). A contract is to be construed “in accordance with the plain meaning of the words contained therein.” Barakat v. Broward Cnty. Hous. Auth., 771 So.2d 1193, 1195 (Fla. 4th DCA 2000) (citing Burns v. Barfield, 732 So.2d 1202, 1205 (Fla. 4th DCA 1999)). There are two types of ambiguities — patent and latent. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So.3d 890, 892 (Fla. 4th DCA 2010). Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways. Id. If the terms of the contract are unambiguous, “the court is bound by the plain meaning of those terms.” Emerald Pointe Prop. Owners’ Ass’n v. Commercial Constr. Indus., Inc., 978 So.2d 873, 877 (Fla. 4th DCA 2008).

Parol evidence is inadmissible to contradict, vary, or modify terms which are unambiguously contained within a written agreement. See Leaseco, Inc. v. Bartlett, 257 So.2d 629, 632 (Fla. 4th DCA 1971). Failure to dictate that 70' x 120' was a minimum threshold led to various interpretations of the provision by the parties. Without the introduction of extrinsic evidence to clarify the intent of the parties and more clearly state the terms of the assignment agreement, ambiguities would have remained. We hold that parol evidence was admissible to assist the court in determining the meaning of the contractual language where ambiguities existed as to the parties’ intent regarding the provided dimensions. Here, a representative of Prime Homes interpreted that the language meant “70' x 120' or above.” However, an expert witness who testified on Prime Homes’ behalf interpreted the lot dimensions differently, providing that the correct way to determine whether Oslo Road was owed an additional payment was to multiply the dimensions to see if the area exceeded 70' x 120', or 8400 square feet.

In rewriting the provision in the assignment agreement, the trial court added the word “typical” so that the provision read “having typical dimensions of 70' x 120'.” It is within the purview of the appellate court’s authority to construe a contract in a way that is “ ‘contrary to that of the trial court.’ ” Thomas v. Vision I Homeowners Ass’n, 981 So.2d 1, 2 (Fla. 4th DCA 2007). It is clear to this court that the original provision was ambiguous, as it stated that lots of 70' x 120' which exceeded 166 required additional pay, rather than stating that those dimensions were a minimum threshold. Therefore, we hold that the trial court reached the correct result — that the provision was ambiguous and required parol evidence and reformation to clearly state the intent of the parties. The expert witness testified that adding the word “typical” would resolve ambiguities and that 70' x 120' was not intended to be used as an exact measurement. The trial court agreed and added the word “typical” in an attempt to clarify the clause. We hold that the trial court properly accepted parol evidence and correctly interpreted the parties’ intentions. We, therefore, affirm as to this point.

Next, we consider the propriety of the vendor’s lien that the trial court imposed against the property.

A vendor’s lien is placed on property to secure an unpaid amount of the purchase price. See Refram v. Porter, 343 So.2d 1343, 1345 (Fla. 2d DCA 1977). Vendor’s liens arise through agreements for deed, as the vendor essentially holds title to the property to secure payment of the agreed upon purchase price. Jasper v. Orange Lake Homes, Inc., 151 So.2d 331, 333 (Fla. 2d DCA 1963). Implied vendor’s liens “may arise after conveyance of the title.” Id. The implied vendor’s lien was

[F]ounded upon the equitable presumption that, where the vendor has parted with his title and taken no security for the payment of the purchase money, the purchaser ought not in conscience be allowed to keep it without paying the consideration. The lien thus created is not a specific, absolute charge upon the property, but only an equitable right of the vendor to resort to the property in case the purchase money is not paid. Such a lien is not the result of an agreement between the vendor and vendee, and is simply an equity raised by the courts for the benefit of the former.

Alabamar-Florida, Co. v. Mays, 111 Fla. 100, 149 So. 61, 65 (1933).

A vendor’s lien comes from the court of equity and serves as security to a vendor for the unpaid amount of the purchase price of a piece of land. Golden v. Woodward, 15 So.3d 664, 669 (Fla. 1st DCA 2009). The lien is not agreed upon by the parties and, instead, is imposed by the court incident to a debt owed to the vendor. Id. Prime Homes argues that Pine Lake is not a vendor and, instead, is an assignor that could not fulfill its obligation to the vendor and, therefore, assigned its right, title, and interest away. Prime Homes also contends that Pine Lake “never achieved vendor status necessary to legally create a vendor’s lien.” Pine Lake asserts that a vendor’s lien may arise for a party, albeit not an actual vendor, that conveyed equitable interest in the land.

Pine Lake relies on the language from Mays, which states that a vendor’s lien may arise in favor of a third party who is “practically” a vendor, rather than “actually” a vendor. Mays, 149 So. at 65. In Mays, the parties were the purchaser and a creditor of the vendor who was going to receive payments from the purchaser to satisfy a debt owed. Id. The creditor was entitled to a vendor’s lien because the grantor and grantee agreed that the purchase money was going to be paid to a third person. Id. This case is distinguished from Mays. Here, Prime Homes is the assignee and Pine Lake is the assign- or. “An assignment has been defined as ‘a transfer or setting over of property, or of some right or interest therein, from one person to another.’ ” Cont’l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 376 (Fla. 2008). Once the property is transferred to another, the assignor no longer has the right to enforce interest because the as-signee obtained all rights to the assigned property. Id. Pine Lake, through assignment, is no longer a party to the action and, instead, merely retains liability as an assignor. The assignment agreement expressly stated that the purchase price for the property is not owed to Pine Lake, but to Oslo Road, the seller of the property. Pine Lake assigned its right, title, and interest in the property to Prime Homes because it could not fulfill its obligation to Oslo Road.

We, therefore, hold that the trial court erred in attaching a lien to the property where Pine Lake was not a vendor — neither practically nor actually — and the assignment was not meant to serve as security for a debt.

Accordingly, we affirm in part and reverse in part. While we agree with the trial court as to its resolution of the contractual language and affirm as to that point, we disagree with the trial court’s imposition of a vendor’s lien and, as such, must reverse as to that issue. We remand this cause for the trial court to enter a modified judgment pursuant to our holding.

Affirmed in part; Reversed in part.

TAYLOR and HAZOURI, JJ., concur.

      . On appeal, there was an issue as to when the vendor’s lien would have arisen. Because we hold that the vendor’s lien was improperly imposed, it is unnecessary for this court to consider the date to which it related back.


author: WARNER, J.

text:
    BRIDGEVIEW BANK GROUP, Appellant, v. Daniel P. CALLAGHAN, et al., Appellees.
    No. 4D11-631.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Courtney L. Fish and Jason M. Ellison of Englander and Fischer, LLP, St. Pe-tersburg, for appellant.
    George P. Ord of Murphy, Reid, LLP, Palm Beach Gardens, for appellees.
   WARNER, J.

In domesticating a foreign judgment against the husband, the trial court entered summary judgment denying the judgment creditor any lien on real property held by the husband and wife as an estate by the entireties. The judgment creditor appeals, claiming that it was entitled to present evidence rebutting the presumption that the property was held in the entireties. We disagree, holding that the rebuttable presumption created by the supreme court in Beal Bank, SSB v. Almand and Assocs., 780 So.2d 45, 58-59 (Fla. 2001), applies to personal property, not real property. Because the conveyance to the spouses did not contain any language expressly showing a contrary intent, a tenancy by the entireties was created. We affirm.

Appellees, Daniel and Milea Callaghan, purchased property in Palm Beach County in 2004, taking title as husband and wife. In 2008, Daniel executed a quit-claim deed purporting to transfer his interest in the property to Milea, as Trustee of the Milea Callaghan Revocable Trust. However, Mi-lea was the only witness on the deed, which was prepared by Daniel’s Illinois attorney. Thus, it was not sufficient to pass title. See § 689.01, Fla. Stat. (2008). Deposition testimony from Daniel suggests that he intended the conveyance for estate tax planning. Milea testified that the signature on the deed was not hers, and that she had no knowledge of the conveyance.

In 2010, appellant Bridgeview recovered a judgment against Daniel. It sought to domesticate the foreign judgment in Florida and at the same time sought to avoid the transfer of Daniel’s interest in the Florida property to Milea’s trust pursuant to the Fraudulent Transfer Act. The Calla-ghans answered and raised multiple defenses. On summary judgment, the trial court domesticated the out-of-state judgment but denied relief to Bridgeview on its attempt to avoid the transfer. The court found that the property had been originally conveyed to Daniel and Milea, as husband and wife, thus creating a tenancy by the entireties in the property. The subsequently executed quit-claim deed was invalid, and the property remained a tenancy by the entireties. Because the property was held by both husband and wife, the court held, Bridgeview had no right to execute on it for debts only of Daniel. Bridgeview appeals the summary judgment.

On appeal, Bridgeview claims that the conveyance to Daniel and Milea as husband and wife created only a presumption that the property was held as a tenancy by the entireties which could be rebutted. It relies on Beal for this proposition. It then argues that Daniel’s ineffective attempt to quit-claim his interest in the property to his wife somehow shows that he didn’t intend the property to be held as a tenancy by the entireties when purchased. We disagree that the Beal rebut-table presumption language applies to real property.

When real property is conveyed to a wife and husband, that conveyance creates an estate by the entireties. See English v. English, 66 Fla. 427, 63 So. 822 (1913).

The cases ... do not support the contention that the creation of an estate by entirety by such a conveyance rests on a rebuttable presumption. The textbook statement of the common law doctrine quoted in our cases is that the doctrine rests ‘upon a rule of construction based on the presumption of intention,’ rather than on any peculiarity of marital incapacity.

Losey v. Losey, 221 So.2d 417, 418 (Fla. 1969) (emphasis supplied, footnote omitted).

Beal recognized the rule with respect to real property, stating “[wjhere real property is acquired specifically in the name of a husband and wife, it is considered to be a ‘rule of construction that a tenancy by the entireties is created, although fraud may be proven.’ ” 780 So.2d at 54 (quoting First Nat. Bank of Leesburg v. Hector Supply Co., 254 So.2d 777, 780 (Fla.1971)). Beal also cited with approval to In re Suggs’ Estate, 405 So.2d 1360, 1361 (Fla. 5th DCA 1981), that “ ‘[a] conveyance to spouses as husband and wife creates an estate by the entirety in the absence of express language showing a contrary intent.’ ” 780 So.2d at 54 (emphasis supplied).

Based upon the foregoing, the conveyance to Daniel and Milea created a tenancy by the entireties, and no express language in the deed showed a contrary intent. Therefore an estate by the entireties is presumed. That presumption is not rebut-table, according to Losey, although it could be set aside if fraud were proven. Bridge-view did not even attempt to prove fraud in this case with respect to the creation of the tenancy by the entirety in 2004.

Beal does not change this result. First and foremost, Beal did not overrule Losey, and the supreme court does not intentionally overrule itself sub silentio. Puryear v. State, 810 So.2d 901, 905 (Fla.2002). Second, Beal involved personal property in the form of bank accounts. The court receded from its prior law that created no presumption of a tenancy by the entireties when a husband and wife opened a joint bank account. The court held that unless the signature card on the account expressed a contrary intent, an account opened by a husband and wife creates a presumption that the account is held by the entireties, assuming that the other unities of time, title, and possession are present. Beal, 780 So.2d at 59. “The presumption we adopt is a presumption affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting the burden to the creditor to prove by a preponderance of evidence that a tenancy by the entireties was not created.” Id. at 58-59 (footnote omitted). Thus, the court established a rebuttable presumption for bank accounts, involving the burden of proof, not the rule of construction established in Losey for real property.

Applying a rule of construction for real property instead of a burden-shifting presumption can be explained by the real property transaction itself. The use of a rebuttable presumption applied to the title to real property would cause significant problems with titles, which are recorded and serve as notice to the world of the ownership of property. Which title insurer could feel secure in insuring property having a conveyance to a husband and wife in the chain of title, if that title could be rebutted by evidence extrinsic to the deed itself? The integrity of the title to real property could be called into question when titles could be overturned in litigation by rebuttable presumptions.

Even if we were to apply a rebutta-ble presumption, we would still conclude that there is no issue of material fact. Bridgeview tries to use the ineffective quit-claim deed of 2008 to infer that Daniel did not intend to create a tenancy by the entireties in 2004 when they obtained title, because Daniel executed the deed without Milea joining in the execution. However, and contrary to the finding by the trial court, one spouse may convey to the other spouse without joinder by the other spouse. See § 689.11, Fla. Stat.; Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941). Therefore, the inference cannot be made that by execution of the quit-claim deed Daniel evinced an intent or belief that the property was not held as a tenancy by the entireties. Moreover, if they had agreed to terminate the entireties estate, the agreement was not to instill ownership in Daniel but to transfer the entire interest to Milea, who was not a judgment debtor of Bridgeview.

Because the property was conveyed to Daniel and Milea in 2004, a tenancy by the entireties was created. A judgment creditor has no right to property held by the debtor in an estate by the entireties. Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376 (1920). The trial court correctly granted summary judgment.

Affirmed.

STEVENSON and CONNER, JJ., concur.


author: PER CURIAM.

text:
    J.W., Father of J.W., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-4189.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2012.
    Paula C. Coffman and Jeffrey D. Deen, Regional Counsel of the Office of Criminal Conflict & Civil Regional Counsel, Orlando, for Appellant.
    Rosemarie Farrell, of the Department of Children & Families, Orlando, for Appel-lees, the Department of Children & Families.
    David C. Knapp, of McDonald Toole Wiggins, P.A., Orlando, for Guardian Ad Litem.
   PER CURIAM.

J.W., the father of a dependent child, appeals from an order requiring him to participate in a drug court program as a case plan requirement. Appellant highlights that section 397.334, Florida Statutes, which authorizes counties to fund drug court programs for criminal defendants provides that “[e]ntry into ... [the] program shall be voluntary.” § 397.334(2), Fla. Stat. (2011). It also specifies that a “court may order an individual to enter into a pretrial treatment-based drug court program only upon written agreement by the individual.... ” Id. Appellant reasons that since this statute provides only for voluntary drug court programs, the trial judge should have been required to select an alternative drug treatment program when he objected to drug court as a case plan requirement. This argument ignores the applicable provision of chapter 39, Florida Statutes, which expressly authorizes the court in a dependency case, upon a showing of “good cause[,]” to:

Require the parent ... [of a dependent child] to participate in and comply with treatment and services identified as necessary, including, when appropriate and available, participation in and compliance with a treatment-based drug court program established under s. 397.334. In addition to supervision by the department, the court, including the treatment-based drug court program, may oversee the progress and compliance with treatment by a person who has custody or is requesting custody of the child.

§ 39.521(l)(b)l., Fla. Stat. (2011). The evidence in this case supports the trial court’s decision to order intensive drug treatment for this parent. Accordingly, under chapter 39, the trial court had the authority to require Appellant to participate in drug court as a case plan condition. Id. If Appellant chooses noncompliance, the trial court may treat the noncompliance as it would noncompliance with any other case plan condition. See id. (“The court may impose appropriate available sanctions for noncompliance upon a person who has custody or is requesting custody of the child or make a finding of noncompliance for consideration in determining whether an alternative placement of the child is in the child’s best interests.”).

AFFIRMED.

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


author: BLACK, Judge.

text:
    Carlos FIGUEROA, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-6140.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.

      Carlos Figueroa, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Carlos Figueroa appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. Given the unique circumstances of this case and Figueroa’s express request that the postconviction court and this court treat his motion in the alternative as a petition for writ of habeas corpus, we treat the appeal as such and grant it.

In 1998, Figueroa was charged by information with “Robbery with a firearm, F.S. 812.13, 775.087, 777.011, punishable by life felony” and first-degree grand theft. Count 1, the robbery charge, was titled as it is quoted above. The body of the information for count 1 provided, in pertinent part:

On or about the 7th of May in Lee County Florida [Figueroa] did unlawfully take away from the person or custody of [the victims], certain property, to wit: jewelry ... with the intent to permanently or temporarily deprive the owner or custodian of a right to the property, when in the course of the taking there was the use of force, violence, assault or putting in fear, contrary to Florida Statute 812.13, 777.011, in violation of Florida Statute(s) 812.13, 775.087, 777.011.

Following a jury trial, Figueroa was found guilty of robbery with a firearm and was sentenced, as a habitual violent felony offender (HVFO), to life in prison with a fifteen-year minimum-mandatory term. The judgment specifically convicts him of robbery with a deadly weapon or firearm pursuant to section 812.13, Florida Statutes (1998), with no mention of section 775.087, Florida Statutes (1998). Figueroa does not challenge his status as an HVFO or the underlying convictions necessary for the HVFO enhancement.

However, in the motion before us, Figueroa argues that the information did not allege that he possessed a firearm during the commission of the robbery — an essential element of the crime for which he was convicted — and that, as such, his sentence is illegal. Figueroa specifically alleges that both the imposition of the life sentence and the fifteen-year minimum-mandatory term are illegal.

Figueroa correctly contends that when there is a discrepancy between the heading and the body of an information as to the offense charged, “the offense described in the body is the one with which the defendant is charged.” Troyer v. State, 610 So.2d 530, 531 (Fla. 2d DCA 1992) (citing Keesee v. State, 204 So.2d 925, 926-27 (Fla. 4th DCA 1967)). He then argues that the information failed to charge robbery with a firearm and was fundamentally defective. Citing Mesa v. State, 632 So.2d 1094, 1097 (Fla. 3d DCA 1994), the State argues that because the information referenced section 775.087 in the body, the information was not fundamentally defective and the judgment and conviction were properly entered.

As we have done previously, we distinguish reclassification of an offense based on section 775.087 from reclassification based on essential elements of a crime under the substantive criminal statute violated. See Franke v. State, 997 So.2d 424, 426 (Fla. 2d DCA 2008) (“[T]he trial court could not have reclassified the offenses [under section 775.087] because the use of a firearm is an essential element of each of them.”). Section 775.087(1) specifically excludes those felonies for which the use of a firearm is an essential element from reclassification under its terms. An essential element of armed robbery, pursuant to section 812.13(2), is use of a firearm. Franke, 997 So.2d at 426; see also State v. Tripp, 642 So.2d 728, 730 n. 2 (Fla.1994) (“Reclassification was improper under section 775.087(1) because attempted armed robbery is a felony in which the use of a weapon is an essential element.”); Ruth v. State, 949 So.2d 288, 289 (Fla. 1st DCA 2007) (concluding reclassification under section 775.087(1) was inapplicable to an appellant who was convicted of armed robbery, a crime for which use of a weapon is an essential element). Thus, robbery with a firearm cannot be reclassified under section 775.087.

Further, an information which “references a specific section of the criminal code” sufficiently detailing “all the elements of the offense” may support a conviction when the information otherwise fails to include an essential element of the crime, DuBoise v. State, 520 So.2d 260, 265 (Fla.1988). However, “a conviction on a charge not made by the indictment or information is a denial of due process[,]” and an indictment or information that “wholly omits to allege one or more of the essential elements of the crime” cannot support a conviction for that crime. State v. Gray, 435 So.2d 816, 818 (Fla.1983). This “is a defect that can be raised at any time — before trial, after trial, on appeal, or by habeas corpus.” Id. The Florida Supreme Court and our court have consistently applied these principles. See, e.g., Jaimes v. State, 51 So.3d 445, 448 (Fla.2010) (“It is a fundamental principle of due process that a defendant may not be convicted of a crime that has not been charged by the state.”); Price v. State, 995 So.2d 401, 404 (Fla.2008) (reiterating that the failure to allege an essential element of a crime may be raised in a habeas petition); Harris v. State, 76 So.3d 1080, 1081 (Fla. 2d DCA 2011) (stating that it is a denial of due process to convict a defendant of an uncharged crime); Pena v. State, 829 So.2d 289, 292 n. 1 (Fla. 2d DCA 2002) (“[T]he failure to allege an essential element of an offense in the charging document is fundamental error, and ... such an issue can be raised at any time.” (citations omitted)).

Thus, as here, an information is fundamentally defective where it fails to cite a specific section and totally omits an essential element of the crime. And “ ‘[n]either a jury finding nor inclusion of the appropriate statute number in the information can cure’ ” the State’s failure to charge essential elements of the crime. Daniel v. State, 935 So.2d 1240, 1241 (Fla. 2d DCA 2006) (quoting Davis v. State, 884 So.2d 1058, 1061 (Fla. 2d DCA 2004)); see also Jaimes, 51 So.3d at 452 (directing entry of a verdict for a lesser-included crime where the defendant was convicted of an offense based on elements that were never charged, constituting fundamental error); McKenzie v. State, 31 So.3d 275, 276 (Fla. 2d DCA 2010); Freudenberger v. State, 940 So.2d 551, 554-55 (Fla. 2d DCA 2006) (discussing the need for precision in the charging document in cases involving section 775.087); Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004); Helmick v. State, 569 So.2d 869, 870 (Fla. 2d DCA 1990); Inmon v. State, 932 So.2d 518, 519 (Fla. 4th DCA 2006); Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002).

Here, the State charged Figueroa with a violation of section 812.13, the robbery statute. The State did not charge violation of a specific subsection, and there was no reference to a specific statute detailing all of the elements of armed robbery. Cf. Delgado v. State, 43 So.3d 132,133 (Fla. 3d DCA 2010) (affirming conviction for armed robbery where information specifically cited subsection of robbery statute); McMillan v. State, 832 So.2d 946, 947 (Fla. 5th DCA 2002) (same). The reference to section 775.087 in the body of the information, a section under which Figueroa’s judgment and sentence were not and could not be reclassified, does not cure what is otherwise a fundamental defect in the charging instrument. See Griffin v. McNeil, 995 So.2d 1178, 1179 (Fla. 4th DCA 2008) (granting petition for writ of habeas corpus, concluding that an offense is limited to the terms charged and that where use of a firearm or deadly weapon is not charged as an element of robbery, the defendant may only be sentenced for simple robbery). Thus, the State’s reliance on Mesa is inapposite because unlike Figueroa’s crime, the charge in Mesa involved a conviction for attempted second-degree murder, a crime for which use of a firearm is not an essential element.

We recognize that Figueroa is benefit-ting from a “rather technical pleading error.” Cochran, 899 So.2d at 492. However, Figueroa was charged with only simple robbery and could have been convicted only of simple robbery, a second-degree felony. See id. HVFO enhancement provides that for second-degree felonies, the defendant may be sentenced to up to thirty years in prison with a minimum-mandatory term of ten years. § TT5.084(4)(b)(2).

Finally, although this argument has been raised by Figueroa both on direct appeal and in prior postconviction motions, this court and the postconviction court apparently overlooked the fundamentally defective information and resulting conviction and sentence. Figueroa should have been granted relief when he first raised this issue on direct appeal. In order “to prevent a manifest injustice and a denial of due process, relief may be afforded even to a litigant raising a successive claim.” Stephens v. State, 974 So.2d 455, 457 (Fla. 2d DCA 2008); see also State v. McBride, 848 So.2d 287, 291-92 (Fla.2003) (concluding that the collateral estoppel doctrine contains an exception where manifest injustice is shown). That relief may be conferred in the exercise of this court’s inherent authority to grant a writ a habeas corpus. Stephens, 974 So.2d at 457. Here, Figueroa is serving a life sentence for a crime he was not charged with committing and a conviction wrongfully entered. We conclude that the circumstances of this case present the “uncommon and extraordinary circumstances” constituting manifest injustice. See Stephens, 974 So.2d at 457-58; Miller v. State, 988 So.2d 138, 139 (Fla. 1st DCA 2008); see also Lawton v. State, 731 So.2d 60, 61 (Fla. 2d DCA 1999) (concluding illegal sentence was fundamental error that needed to be corrected because the result was a manifest injustice to the defendant).

Based on the foregoing, we treat Figueroa’s appeal as a petition for writ of habeas corpus, grant the petition, and direct the postconviction court to enter an amended judgment reflecting a second-degree felony conviction and to resentence Figueroa to a term of not more than thirty years in prison, with a ten-year minimum-mandatory term, as a habitual violent felony offender. Additionally, that portion of the postconviction court’s order finding Figueroa’s claims successive, frivolous, and not made in good faith and directing that a certified copy of the order be forwarded to the Department of Corrections for consideration of disciplinary procedures is vacated.

Petition granted; order vacated.

DAVIS and KHOUZAM, JJ., Concur.

      . We note that Figueroa’s claim is not cognizable in a rule 3.800(a) motion because he is challenging the underlying conviction as well as the illegality of his sentence. Cf. Cochran v. State, 899 So.2d 490 (Fla. 2d DCA 2005) (reversing denial of rule 3.800(a) motion where sentence was illegal and judgment did not require correction because it did not reflect degree of offense). Claims of illegal enhancement of sentences generally arise in cases where possession of a firearm was charged but the jury convicted the defendant of discharge of a firearm — a crime of the same degree but carrying a different minimum-mandatory term under section 775.087. See, e.g., McKenzie v. State, 31 So.3d 275 (Fla. 2d DCA 2010); Adams v. State, 916 So.2d 36 (Fla. 2d DCA 2005). Here, not only does the sentence change with the finding of use of a firearm, but the level of the offense changes, making Figueroa’s challenge to his sentence impossible to differentiate from a challenge to his conviction. See State v. Mancino, 705 So.2d 1379, 1381 (Fla.1998).


author: NORTHCUTT, Judge.

text:
    G.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4195.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

The circuit court found that G.G. possessed marijuana and paraphernalia and it adjudicated him delinquent. On appeal, G.G. maintains that the evidence was insufficient to support the court’s finding. We agree, and we reverse his adjudication and remand with directions to dismiss the delinquency petition.

G.G., a seventeen-year-old, argued with his father and then fled into a neighborhood conservation area consisting of woods and a park. G.G.’s father became concerned because he could not immediately locate his son and the weather forecast called for a frigid night. He called the Hillsborough County Sheriffs Department, which sent several deputies to search for the boy. The deputies found him after dark, asleep on the ground in an unfenced public park. He was lying near an open field and a playground, close to a wooded area. One deputy shined his flashlight on the ground and spied a black drawstring pouch about a foot from where G.G. was sleeping. The bag contained marijuana and paraphernalia. No contraband was found on G.G.’s person.

The State filed a petition for delinquency claiming that G.G. possessed the contraband discovered in the pouch. At the adjudicatory hearing G.G. moved for a judgment of dismissal, arguing that the evidence was insufficient to prove his possession of the drugs or paraphernalia. The State maintained that G.G. was in actual possession of the contraband because the bag was within his “ready reach.” Under this theory of possession, the State must also prove that the contraband was under the defendant’s control. Sundin v. State, 27 So.3d 675, 676-77 (Fla. 2d DCA 2009); McCoy v. State, 840 So.2d 455 (Fla. 4th DCA 2003). The court below held the somewhat different view that G.G. was in constructive possession of the drugs and paraphernalia. Constructive possession is proved by showing that (1) the accused knew of the presence of the contraband, and (2) he could exercise dominion and control over it. See §§ 893.101, .13, Fla. Stat. (2010); Brown v. State, 8 So.3d 464 (Fla. 2d DCA 2009).

Under either theory of possession, then, the State must prove that the accused had control of the contraband. See McCoy, 840 So.2d at 456. And as we have consistently held, under either theory the requisite control is not established by an accused’s mere proximity to the contraband. See, e.g., Sundin, 27 So.3d at 676-77 (holding evidence insufficient to prove actual possession despite the fact that crack pipe was within defendant’s ready reach on nightstand less than a foot from where defendant was lying on hotel room bed because State presented no evidence linking him to pipe other than his proximity to it, nor did it prove defendant had control over hotel room premises); Davis v. State, 761 So.2d 1154, 1158 (Fla. 2d DCA 2000) (holding that defendant’s proximity to drugs discovered in public alley was insufficient, without more, to prove his constructive possession of drugs).

The facts in this case are akin to those in Davis; King v. State, 817 So.2d 935 (Fla. 5th DCA 2002); Agee v. State, 522 So.2d 1044 (Fla. 2d DCA 1988); and Tanksley v. State, 332 So.2d 76 (Fla. 2d DCA 1976). As in those cases, here the contraband was discovered outdoors, in a location open to the public, but in proximity to the defendant. And, as in the cited cases, here the only evidence the State offered to prove the element of control was the defendant’s proximity to the illegal material. It proved no other circumstance that might have suggested that G.G. had control of the bag or its contents, e.g., an admission, his fingerprints on the drugs or paraphernalia, or the presence of other of his possessions in the bag.

The upshot is that the State’s evidence failed to show that G.G. was even aware that the contraband was nearby, let alone that he had control over it. For this reason, the evidence was insufficient to prove that G.G. committed the possession offenses, and his delinquency adjudication must be reversed with directions to dismiss the petition.

Reversed and remanded with directions.

ALTENBERND and VILLANTI, JJ., Concur.

      . We recognize that the question of whether section 893.13 is unconstitutional because it does not require the State to prove the defendant's knowledge of the illicit nature of the contraband is pending before the Florida Supreme Court in State v. Adkins. See 71 So.3d 117 (FIa.2011) (granting review). As we will explain, the evidence in this case failed to prove that G.G. had dominion or control over the drugs or the paraphernalia. Because the State’s proof failed on this element, we need not reach the issue presented in Adkins.


author: DAVIS, Judge.

text:
    Jermaine Jarvis WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3161.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Jermaine Jarvis Williams challenges his conviction and sentence for aggravated battery. Because the trial court erred in denying Williams’ request for a jury instruction on the justifiable use of nondeadly force, we reverse and remand for new trial.

The charge against Williams arose from a dispute between Williams and his girlfriend Heather Kunz. While at a bar with Kunz’s friend, Sarah Fournier, Williams and Kunz engaged in a verbal disagreement in the parking lot. During the argument, Williams grabbed Kunz’s arms and held them behind her back. Fournier attempted to pull Kunz away from Williams, and Williams punched Fournier in the jaw, fracturing it in two places. At trial, Williams maintained both that it was an accident and that he was swinging at no particular person in the crowd of ten or so men that he claims gathered around the dispute. According to Williams, who is African-American, he heard racial slurs and threats coming from the bystanders, someone in the crowd punched him in the head, and he turned and threw one punch without aiming at a particular target.

A jury found Williams guilty as charged, and the trial court sentenced him to ten years’ imprisonment and imposed restitution in the amount of $50,000.

On appeal, Williams argues that the trial court erred in denying his request for a jury instruction on the justifiable use of nondeadly force. He maintains that while it is true that the evidence did not show that he reasonably believed that he needed to use force to defend himself from harm at the hands of Sarah Fournier, it did establish that he reasonably believed that it was necessary for him to use force to defend himself against the imminent use of unlawful force by the amassed crowd.

At trial Williams testified that during the incident between himself and Kunz, a crowd of about ten men was closing in on him, that the men were yelling racial slurs and threats, and that someone in the crowd actually hit him in the head. He further testified, “I felt the crowd of people started grabbing me and punching me in my head. So I just turned around and threw one punch, and just ran off and got in my car and left.”

On cross-examination, the following exchange occurred:

Q. And you had nothing to do with [Sarah Fournier] getting punched in the face?
A. Not that I know of.
Q. What does that mean, “Not that I know of’?
A. Like I didn’t look at Sarah and just straight punch her in her face.
Q.... Sarah was behind Heather. And so if you would have punched her, you would have known it. But you’re also saying not that you know of. How do you reconcile those two statements if she was behind Heather such that you would have known if you punched her and you’re saying not that you know of? A. I mean, you know, anybody could have punched her.
Somebody could have been trying to punch me and ended up punching her. I don’t know how she got hit.
Q.... Are you saying that you didn’t hit the victim?
A. Yes.
Q. So it’s not — not that you know of. It’s no, I didn’t hit her?
A. Yeah.

Based on Williams’ testimony, the trial court denied the requested jury instruction. The trial court noted that in order to be entitled to the instruction, a defendant must first admit that he actually committed the offense that he maintains he was justified in committing. The court concluded that Williams did not admit the offense because at one point in his testimony he stated that he never hit the victim. We do not agree.

“A ‘[defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such instructions.’ ” Aumuller v. State, 944 So.2d 1187, 1142 (Fla. 2d DCA 2006) (alteration in original) (quoting Hooper v. State, 476 So.2d 1258, 1256 (Fla.1985)); see also Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998) (“ ‘Where there is any evidence introduced at trial which supports the theory of the defense, a defendant is entitled to have the jury instructed on the law applicable to his theory of defense when he so requests.’ ” (quoting Bryant v. State, 412 So.2d 347, 350 (Fla.1982))).

In Arthur, 717 So.2d 193, the defendant was charged with aggravated assault. The State maintained that during a verbal altercation with a female bar patron in the bar’s parking lot, Arthur pulled a shotgun from the back of his truck and pointed it at the victim, who was standing with the female by Arthur’s truck. Arthur, however, claimed that when he and the female bar patron began quarreling, the woman followed him into the parking lot and continued to shout at him. According to Arthur,

the crowd in the bar, armed with cue sticks and bottles of beer, followed [the woman] outside into the parking lot. He testified that he was in fear that the crowd would attack him and his truck ... [so] he displayed the shotgun without pointing it at anyone, which caused the crowd to disperse.

717 So.2d at 194. Arthur therefore requested a jury instruction on justifiable use of nondeadly force, but the trial court denied the request. The Fifth District reversed:

A defendant is entitled to an instruction on his theory of defense, “however flimsy” the evidence is which supports that theory, Vazquez v. State, 518 So.2d 1348, 1350 (Fla. 4th DCA 1987), or however “weak or improbable his testimony may have been[,]” Holley v. State, 423 So.2d 562, 564 (Fla. 1st DCA 1982)....
In the instant case, Arthur clearly introduced sufficient evidence to support the instruction on the justifiable use of [nondeadly] force.... Arthur denied ever having pointed the shotgun at the victim as an individual but admitted threatening a crowd with the gun. Arthur further testified that he had no fear of the victim as an individual but that he was afraid of the crowd that was gathering around him, his girlfriend, and his truck immediately prior to his display of the shotgun. Having introduced evidence that he only used [non-deadly] force in the face of a fear of imminent bodily harm, Arthur was entitled to a jury instruction that his actions were legal under those circumstances.

Arthur, 717 So.2d at 194-95 (emphasis added).

Here, although Williams denied hitting the victim, he did admit that he threw a punch indiscriminately at the assembled crowd. We recognize that the self-serving nature of this testimony may render the evidence flimsy, but pursuant to Arthur, Williams was entitled to the requested jury instruction. As such, we reverse Willliams’ conviction and sentence and remand for a new trial.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.

      . The only other meritorious issue raised by Williams on appeal is his challenge to the amount of restitution imposed. However, our disposition here renders that issue moot.


author: WETHERELL, J.

text:
    Gerald Raymond RICHARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-116.
    District Court of Appeal of Florida, First District.
    April 2, 2012.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant was convicted of second-degree murder and was sentenced to life in prison based on the jury’s finding that he discharged a firearm causing great bodily harm during the commission of the offense. In this direct appeal, Appellant contends that the trial court fundamentally erred in instructing the jury on the lesser included offense of manslaughter. We find no merit in this argument and, thus, affirm Appellant’s judgment and sentence.

In State v. Montgomery, the supreme court held that it was fundamental error to instruct the jury that in order to find the defendant guilty of manslaughter, the jury-must find that the defendant intended to kill the victim. 39 So.3d 252 (Fla.2010). Subsequently, in Riesel v. State, this court held that the 2008 “interim” jury instruction was fundamentally erroneous because, like the instruction in Montgomery, the revised instruction required the jury to find that the defendant “intentionally caused the death” of the victim as an element of the offense even though the instruction later provided that the jury was to find only an intent to commit an act which caused the victim’s death. 48 So.3d 885 (Fla. 1st DCA 2010). See also Noack v. State, 61 So.3d 1208 (Fla. 1st DCA 2011); Williams v. State, 50 So.3d 1207 (Fla. 1st DCA 2010); Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010).

The instruction given in this case differs from the instruction given in Montgomery and Riesel. Here, the jury was instructed:

To prove the crime of manslaughter the state must prove the following two elements beyond a reasonable doubt: First, Mr. Ware is dead. Second, Mr. Richards committed an intentional act that caused the death of Mr. Ware. However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained these terms. In order to convict of manslaughter by intentional act it is not necessary for the state to prove the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

This instruction is substantially the same as the 2010 interim instruction which provided that the jury was required to find that the “defendants act caused the death” of the victim. In re Amendments to Standard Jury Instructions in Criminal Cases — Instruction 7.7, 41 So.3d 853 (Fla. 2010). Furthermore, the instruction given is nearly identical to the recently revised 2011 version, which requires that the jury must find that the defendant “intentionally committed an act or acts that caused the death” of the victim. In re Amendments to Standard Jury Instruc tions in Criminal Cases — Instruction 7.7, 75 So.3d 210 (Fla.2011).

The instruction in this case cures the problem underlying the decisions in Montgomery and Riesel. The instruction does not erroneously inform the jury that an intent to kill is required; rather it properly instructs the jury that only an intentional act is required. Thus, this instruction does not interfere with the jury’s ability to exercise its inherent “pardon” power to find a defendant guilty of a lesser offense. Having been properly instructed, the jury had a fair opportunity to find Appellant guilty of the next lesser offense of manslaughter.

Appellant is correct that the trial court should not have instructed the jury that “it is not necessary for the state to prove the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” That language should only be given when a defendant is charged with first-degree premeditated murder. Here, Appellant was charged with only second-degree murder. However, we have previously held that the inclusion of this language in the instructions given to the jury does not rise to the level of fundamental error because “this language is a correct statement of law and because it does not affirmatively instruct the jury that an intent to kill is necessary for [ ] voluntary manslaughter.” Griffin v. State, 41 So.3d 927, 929 (Fla. 1st DCA 2010). Therefore, the language does not render the instruction as a whole fundamentally erroneous.

Finally, we reject Appellant’s contention that the manslaughter instruction was deficient because it failed to define justifiable or excusable homicide within this particular instruction. The court properly instructed the jury that justifiable homicide and excusable homicide are excluded from the crimes of second-degree murder and manslaughter. Although the court did not define those terms as part of the manslaughter instruction, it did refer the jury back to the definitions of those terms given at the beginning of the homicide instructions. This was proper. See Rojas v. State, 552 So.2d 914, 916 n. 2 (Fla.1989) (noting that the standard jury instruction referring to the previous definition for justifiable and excusable homicide adequately reminds jury that justifiable and excusable homicide are not contained within definition of crime). Additionally, the jury was given copies of the jury instructions that contained the definitions so it had the ability to refer to the definitions during deliberation.

In sum, for the reasons stated above, we affirm Appellant’s judgment and sentence.

AFFIRMED.

PADOVANO and LEWIS, JJ., concur.

      . We note that the Second and Third District Courts of Appeal have certified conflict with Riesel. See Figueroa v. State, 77 So.3d 714 (Fla. 3d DCA 2011); Daniels v. State, 72 So.3d 227 (Fla. 2d DCA 2011); see also Morgan v. State, 42 So.3d 862 (Fla. 4th DCA 2010) (affirming use of attempted manslaughter instruction which was consistent with the 2008 amendment). The Florida Supreme Court has accepted review in Daniels to resolve this conflict. 79 So.3d 744, 2012 WL 416789 (Fla. Feb. 3, 2012).

      . This instruction was available at the time of Appellant’s trial, but the trial court had the authority to give a modified instruction so long as the court correctly stated the law. See In the Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 598 (Fla.1981).

      . The 2011 amendment to the standard jury instruction removed this qualifier. This portion of the instruction is no longer limited to cases where manslaughter is a lesser included offense of first-degree premeditated murder.


author: EMAS, J.

text:
    Alexander GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3094.
    District Court of Appeal of Florida, Third District.
    April 4, 2012.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, LAGOA and EMAS, JJ.
   EMAS, J.

Appellant, Alexander Green, appeals his conviction and sentence for manslaughter. We affirm, without further discussion, the judgment of conviction. However, Appellant’s argument regarding sentencing has merit and, for the reasons which follow, we vacate the sentence and remand the cause for a new sentencing hearing before a different judge.

At the sentencing hearing, the victim’s parents made a statement to the Court. Thereafter, the following took place:

Court: Mr. Green, do you have anything to say?
Defendant: Yes, sir.
Defense counsel: If I may have a moment, Judge.
Court: All right. We either have something to say or we don’t. Let’s go.
Defense counsel: I believe Mr. Green is going to invoke his Fifth Amendment right at this point in time, Your Hon- or.
Court: The[re] are 17-year-old people fighting and dying for this country right now. People are born and have to deal with adverse situations all the time. I regret that it is not an option for me to sentence you to life. You took a life and as far as I am concerned you forfeited your life. To the family of Mr. Hill, I understand your pain and the maximum that I can sentence Mr. Green to is 30 years.... The maximum I can sentence you is 30 years in state prison and I am sentencing you to 30 years in state prison. And you had your opportunity to talk. To take somebody’s life the way you did, when you walk up to somebody and you shoot them pointblank in the ear and you have nothing to say to these people, you know what, that tells me a lot about you. You don’t deserve to be out here with the rest of us. 30 years in state prison. Get him out of here.

(Emphasis added).

It is reasonably evident that the trial court, in fashioning the sentence, considered Appellant’s silence and, by his silence, the failure to express remorse. This was improper. Although a defendant’s expression of remorse and acceptance of responsibility are appropriate factors for the court to consider in mitigation of a sentence, a lack of remorse, the failure to accept responsibility, or the exercise of one’s right to remain silent at sentencing may not be considered by the trial court in fashioning the appropriate sentence. Mentor v. State, 44 So.3d 195 (Fla. 3d DCA 2010); Johnson v. State, 948 So.2d 1014 (Fla. 3d DCA 2007); Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004); A.S. v. State, 667 So.2d 994 (Fla. 3d DCA 1996); Whitmore v. State, 27 So.3d 168 (Fla. 4th DCA 2010); Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009); Ritter v. State, 885 So.2d 413 (Fla. 1st DCA 2004); K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001). Resentencing is required even if this was but one of several factors the court considered in imposing its sentence. Soto, 874 So.2d at 1217; A.S., 667 So.2d at 996.

The due process clause of the Fifth Amendment prohibits a court from punishing a defendant for exercising a constitutional right, such as the right to remain silent. As the Florida Supreme Court explained broadly in Holton v. State, 573 So.2d 284, 292 (Fla.1990):

A defendant has the right to maintain his or her innocence and have a trial by jury. Art. I, § 22, Fla. Const. The protection provided by the fifth amendment to the United States Constitution guarantees an accused the right against self-incrimination. The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt. A trial court violates due process by using a protestation of innocence against a defendant. This applies to the penalty phase as well as to the guilt phase under article I, section 9 of the Florida Constitution.

When a defendant chooses to remain silent at a sentencing hearing, and the trial court regards this silence as a lack of remorse or a failure to accept responsibility, it causes an impermissible chilling effect upon a defendant’s due process rights, and cannot serve as a constitutionally permissible sentencing consideration. A defendant would face a Hobson’s choice between his right to remain silent (thus maintaining his innocence and preserving, as a practical matter, his appellate rights) and his right to allocution at sentencing. A defendant who chooses silence at sentencing risks the possibility of an increased sentence should the trial court find such silence is evidence of a failure to express remorse or accept responsibility. A defendant who chooses to speak at sentencing and attempts simultaneously to express remorse while maintaining his innocence, does so at the risk that the trial judge will find such expressions of remorse insincere, exposing a defendant to the possibility of a harsher sentence.

Conviction affirmed; sentence vacated and cause remanded for a new sentencing hearing before a different judge. The defendant is entitled to be present at the new sentencing hearing.

      . It should be noted that Appellant did not testify at his trial.

      . See, e.g., § 921.0026(2)(j), Fla. Stat. (2007) (permitting trial court to depart downward from the sentencing guidelines where it established the "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse”).

      . Of course, a sentencing court is free to conclude that a defendant seeking a reduction, mitigation, or downward departure of a sentence, based upon a claim of remorse or acceptance of responsibility, has failed to make such a showing. See, e.g., Shelton v. State, 59 So.3d 248 (Fla. 4th DCA 2011) (holding sentence was proper where court’s comments regarding lack of remorse were merely a recognition that there was no basis to grant defendant's request for a reduced sentence).

      . See Fla. R.Crim. P. 3.720(b); Ventura v. State, 741 So.2d 1187 (Fla. 3d DCA 1999); Barry v. State, 330 So.2d 512 (Fla. 1st DCA 1976).


author: ROTHENBERG, J.

text:
    Edward CUTLER, Petitioner, v. Cynthia CUTLER, Respondent.
    No. 3D11-2551.
    District Court of Appeal of Florida, Third District.
    April 4, 2012.

      Billbrough & Marks, and G. Bart Billb-rough, for petitioner.
    John C. Lukács, for respondent.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The petitioner, Edward Cutler, a beneficiary of the estate of Edith Alice Cutler, seeks an emergency writ of prohibition to preclude the trial court from holding an evidentiary hearing on his petition to admit a codicil. To the extent the trial court may have been misled or improperly convinced to conduct an evidentiary hearing on the petition to admit a codicil, we grant the petition.

Without belaboring the tortured history regarding the administration of this estate, we will briefly articulate the relevant facts. Edith Cutler died on June 6, 2004. On October 14, 2004, Edward Cutler filed a petition to admit a codicil during the probate proceedings. The petition sought modification of Edith Cutler’s will based on a document titled “Statement & Agreement,” dated February 2004 (four months prior to Edith Cutler’s death). This codicil purported to release Edward Cutler from various financial obligations, including the repayment of a mortgage loan on Edith Cutler’s home. Cynthia Cutler, Edward Cutler’s sister, and the intended recipient of the devised residence, filed a response which included an affirmative defense of undue influence.

Six years later, after extensive discovery was conducted, and only two weeks before the evidentiary hearing specially set by Cynthia Cutler, Edward Cutler filed a Notice of Voluntary Dismissal and Withdrawal of Petition to Admit Codicil. Because the hearing had been scheduled by Cynthia Cutler, the trial court asked Cynthia Cutler’s counsel to advise the court what issues, if any, remained to be heard. Cynthia Cutler’s counsel responded that he intended to proceed with the hearing on Edward Cutler’s petition to admit the codicil as scheduled. The trial court, therefore, notified the parties that the hearing would proceed as scheduled, thus prompting the filing of the instant prohibition petition.

Generally, a party may voluntarily dismiss any claim, and such a dismissal, if accepted by the trial court, deprives the court of jurisdiction over the subject matter of the claim dismissed. Fla. R. Civ. P. 1.420; Serv. Experts, LLC v. Northside Air Conditioning & Elec. Serv., Inc., 56 So.3d 26 (Fla. 2d DCA 2010); Tobkin v. State, 111 So.2d 1160 (Fla. 4th DCA 2001). An exception to this general proposition is where the party taking the voluntary dismissal is perpetrating a fraud on the court. Tobkin, 111 So.2d at 1163-64.

Cynthia Cutler contends the purported codicil was procured through undue influence and the defense mounted against recognition of this document was costly to the estate, in the form of attorney’s fees, costs, and time. Additionally, Cynthia Cutler contends that if the trial court finds the purported codicil was procured through undue influence, Edward Cutler will not be entitled to recover attorney’s fees awarded, but not paid, from the estate, which he incurred prosecuting his claim.

Although we agree that the trial court had the authority to reject the voluntary dismissal, Cynthia Cutler filed no motion or other pleading objecting to the withdrawal of the petition; there is nothing in the record to suggest the trial court did not accept Edward Cutler’s dismissal of his petition to admit the codicil; and Cynthia Cutler did not file any pleading attacking the withdrawal of the petition. Instead, Cynthia Cutler attempted to have the trial court conduct a hearing on the withdrawn petition.

We do not fault the trial court for not cancelling the specially set hearing based on Cynthia Cutler’s representation that there were issues remaining to be heard, and of course, it is not evident that the trial court would have conducted a hearing on the dismissed petition once the attorneys appeared and the trial court was properly advised as to the procedural posture of the petition and the law. To the extent the trial court may have been persuaded to conduct a hearing on the withdrawn petition, we grant the writ of prohibition. In granting the writ, we do so without prejudice to Cynthia Cutler to seek review and relief of any misconduct or fraud allegedly committed in the procurement and/or prosecution of the alleged codicil.

Petition granted.


text:
    Anthony CIRILLO, Appellant, v. Ashley S. JONES, Appellee.
    No. 4D11-1478.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.

      Debra D. Klingsberg of Hunt & Gross, P.A., Boca Raton, for appellant.
    No brief filed for appellee.
   PER CURIAM.

The trial court entered a final judgment of injunction for protection against repeat violence against appellant, Anthony Cirillo, on the petition of appellee, Ashley Jones. Mr. Cirillo raises two issues on appeal, both of which we find to have merit. We reverse.

Mr. Jones filed his petition alleging two incidents of violence. At the trial, Mr. Jones testified that during the first incident, Mr. Cirillo confronted Mr. Jones about remarks he had made. While cursing at and threatening Mr. Jones, Mr. Cirillo poked him in the chest and spat on him. In response, Mr. Cirillo attempted to call his sixteen-year-old son to rebut this testimony. The trial court refused to permit Mr. Cirillo to present this witness in his defense. The second incident occurred at a board meeting of their homeowner’s association. At the end of the meeting, Mr. Cirillo again confronted Mr. Jones. Mr. Cirillo was cursing at him and then ended it by saying “I will kill you or sue you.” Mr. Jones jumped up and repeated this over and over. The meeting ended shortly thereafter and Mr. Cirillo left. In his defense, Mr. Cirillo testified that what he was trying to say to Mr. Jones was “I will sue you and kill you in court,” but he never got the “in court” statement out because Mr. Jones jumped up and started saying “did you say you would kill me.”

Mr. Cirillo argues that the second confrontation at the board meeting does not support a finding of an incident of violence. Section 784.046(l)(a), Florida Statutes (2011), provides in pertinent part:

(1) As used in this section, the term:
(a) “Violence” means any assault, aggravated assault, battery ..., or any criminal offense resulting in physical injury or death, by a person against any other person.
(b) “Repeat violence” means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.

§ 784.046(l)(a) & (b), Fla. Stat. (2011). “Each incident must be proven by competent, substantial evidence.” Titsch v. Buzin, 59 So.3d 265, 266 (Fla. 2d DCA 2011).

An “assault” is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2011).

In Titsch, one of the incidents of alleged violence occurred when Titsch stopped his car in front of Buzin’s home, got out and made a hand gesture imitating a gun while saying “Bang your [sic] dead — I’m going to Fu[ — ing] kill you.” Id. at 266. The district court concluded that there was no evidence Titsch “made an overt act indicating an ability to carry out the threat or that would otherwise justify a reasonable belief by Mr. Buzin that violence was imminent.” Id. at 267.

During the incident at the board meeting, the evidence did not show that Mr. Cirillo made any overt acts at the time of the threat which indicated an ability to carry out the threats or justified a reasonable belief by Mr. Jones that violence was imminent. After Mr. Cirillo said he was going to sue or kill Mr. Jones, Mr. Jones started repeating what Mr. Cirillo said over and over. Thereafter, the meeting was over and everyone left. We conclude that the evidence was insufficient to prove two incidents of violence occurred.

Additionally, Mr. Cirillo argues that the trial court deprived him of due process when it precluded him from calling a witness to testify in his defense. Mr. Cirillo called his sixteen-year-old son to testify and the trial court refused to permit it. “Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf ..., and the denial of this right is fundamental error.” Pope v. Pope, 901 So.2d 352, 353 (Fla. 1st DCA 2005).

In Ohrn v. Wright, 963 So.2d 298 (Fla. 5th DCA 2007), at a hearing on a repeat violence injunction, the trial court did not permit Ohrn to call a witness who would support her version of the incidents that occurred between the parties. Section 784.046(6)(a), Florida Statutes (2011), requires a full hearing prior to entering an injunction. In finding a due process violation, the Fifth District held:

To satisfy the constitutional and statutory imperative of due process, at an injunction hearing, the parties must have an opportunity to prove or disprove the allegations made in the complaint. All witnesses should be sworn, each party should be permitted to call witnesses with relevant information, and cross examination should be permitted.

Id. at 298. The trial court should have permitted Mr. Cirillo to call his witness. The trial court deprived Mr. Cirillo of due process and if that were the only issue on appeal this court would reverse and remand for a new trial. However, because the alleged second incident was not an act of violence under the statute, the evidence did not show repeat violence. We, therefore, reverse the final judgment of injunction.

Reversed.

POLEN, TAYLOR and HAZOURI, JJ., concur.

      . Mr. Cirillo also argues that the trial court abused its discretion in not granting his motion for continuance. We find this argument to be without merit.


text:
    J.T.J., Appellant, v. N.H. and E.R., Appellees.
    No. 4D11-19.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2012.

      Moria Rozenson of Pickett, Marshall & Rozenson, P.A., West Palm Beach, for appellant.
    Trey E. Miller of Law Office of Trey E. Miller, III, P.A., Hollywood, for appellees.
   WARNER, J.

Appellant, the biological father of the child, G.H., appeals the trial court’s dismissal of his petition to establish paternity on the ground that G.H. was born during the mother’s marriage to another man, thus raising the presumption of legitimacy for G.H. Appellant claims, however, that he is entitled to an evidentiary hearing to determine his standing to bring this petition. We agree and reverse.

The mother of the child, N.H., was married to E.R. at the birth of her child, G.H., in March 2009, although E.R. is not listed as the father of G.H. on the birth certificate. Instead, the certificate states “mother refuses information on husband.” Because G.H. tested positive for marijuana and cocaine at birth, he was placed in the custody of DCF, and N.H. and E.R. each signed a surrender of their parental rights as to G.H.

By November 2009 the Department filed a case plan for G.H., which acknowledged that appellant was the alleged biological father of G.H. However, the case plan indicated that appellant’s “whereabouts are unknown at this time,” and that DCF was “conducting a diligent search.” At that point, G.H. was placed in a pre-adop-tive foster home, as the mother and E.R. had signed surrenders. The case plan had a termination of parental rights and an adoption goal date of January 4, 2010. No petition for termination of parental rights was filed.

On May 28, 2010, appellant filed a verified petition to determine paternity and for related relief, claiming to be the father of G.H., born more than a year prior. In the petition, appellant alleged that he is G.H.’s biological father and that a DNA test positively identified him as such. He claimed that he: “met with the team overseeing [G.H.’s] welfare ... and the appropriate social workers and the guardian ad litem to [G.H.], to prepare a transition plan so that [G.H.] could move into [appellant’s] home and full time custody ... ”; “has been working on establishing a relationship with his child through visitation with [G.H.], as often as is practicable ... ”; has prepared a home for G.H.; has held a DCF home visit; has submitted necessary DCF paperwork for custody; and has filed paperwork with the Florida Putative Father Registry. Appellant acknowledged that N.H. and E.R. signed paperwork surrendering their parental rights on the date of G.H.’s birth and placing G.H. in DCF custody.

E.R. filed an answer to appellant’s petition, admitting that he was married to N.H. on the date of G.H.’s birth, that he is not the biological father of G.H., and that DNA evidence shows that appellant is the biological father. He does not have a relationship with the child, nor does he want one. He admitted that appellant’s petition for paternity should be granted. In November 2010, N.H. filed a motion to dismiss the Chapter 742 paternity action with prejudice, arguing that appellant cannot file a paternity action for a child born in an intact marriage and that appellant’s consent to the adoption of G.H. is not required. She also filed an affidavit attesting that appellant is the biological father of G.H. She otherwise discredited appellant, stating that he has several felony convictions, was completely unsupportive of her throughout the pregnancy, and did not come to G.H.’s birth, even though she called him and told him she was delivering. He refused to provide her with financial support.

The former foster parents, who wanted to adopt G.H., moved to intervene in the paternity proceedings, which motion was objected to by appellant, DCF, and the guardian ad litem. However, the former foster parents withdrew their motion to intervene in favor of the court ruling on the mother’s motion to dismiss the paternity proceeding.

At the hearing on the motion to dismiss, no evidence was taken. N.H.’s attorney argued that appellant lacked standing to bring the paternity suit. Appellant’s counsel argued that appellant had the right to rebut the presumption based on his efforts to establish a relationship with G.H. DCF, the guardian ad litem, and the licensed foster care agency in charge of G.H. all sided with appellant. In rebuttal, N.H.’s attorney argued that appellant was “required to show he has manifested a substantial concern for the welfare of his illegitimate child before he may be appointed standing to assert an interest with respect to that child.”

In dismissing the case with prejudice, the trial court relied on the presumption of legitimacy of G.H. because he was born during the marriage of his mother and E.R. Because of this strong presumption, the court found that a petition for paternity was not available to appellant to establish his fatherhood. Relying on Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 309 (Fla.1993), the court quoted:

“there must be a clear and compelling reason based primarily on the child’s best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father ... [t]hus, if a test shows that [a man other than the child’s legal father] is the child’s biological father, this fact without more does not constitute grounds to grant a paternity petition.”

Appellant’s DNA test alone did not constitute grounds to grant his petition. Appellant appeals this order.

In Dep’t of Revenue ex rel. Garcia v. Iglesias, 77 So.3d 878, 879 (Fla. 4th DCA 2012) (citing Lander v. Smith, 906 So.2d 1130 (Fla. 4th DCA 2005)), we held that our standard of review was de novo. “ ‘In assessing the adequacy of the pleading of a claim, the court must accept the facts alleged therein as true and all inferences that reasonably can be drawn from those facts must be drawn in favor of the pleader.’” Lander, 906 So.2d at 1132 (quoting MEBA Med. & Benefits Plan v. Logo, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004)).

Chapter 742, Florida Statutes (2010), governs determination of parentage. Section 742.011 provides the basis for the circuit court’s jurisdiction over a party:

Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.

(emphasis added). Chapter 742 “provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock.” § 742.10(1), Fla. Stat.

There is a strong presumption “that a man married to the biological mother is in fact the legal father of the child. This presumption is one of the strongest rebuttable presumptions known to law and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.” G.T. v. Adoption of A.E.T., 725 So.2d 404, 410 (Fla. 4th DCA 1999) (citing, inter alia, Privette, 617 So.2d 305). Nevertheless, the presumption is not conclusive and may be overcome with “clear and compelling reason based primarily on the child’s best interests.” Privette, 617 So.2d at 309 (emphasis added).

In Kendrick v. Everheart, 390 So.2d 53 (Fla.1980), the supreme court carved out a means of rebutting the presumption to establish standing:

The fact remains, however, that the unwed father is not in all respects similarly situated with the unwed mother or the married father. This fact constitutionally permits the state to distinguish between them when the state does so on a basis realistically related to the differences in their situations.... As a consequence of the differences in their situations, the unwed father is required to show that he has manifested a substantial concern for the welfare of his illegitimate child before he may be accorded standing to assert an interest with respect to that child.

Id. at 60 (citations omitted) (emphasis added). We note, however, that in Kendrick, the biological father was attempting to assert his rights against the legal father, and the record was not clear as to whether the mother and legal father were still married.

Very recently, in Iglesias, the Department of Revenue filed a petition to establish paternity, naming two respondents and alleging that Iglesias was the biological father of the child, even though the mother was married to the other respondent when the child was conceived and born. 77 So.3d at 878. Iglesias filed a motion to dismiss on this basis, and the trial court “entered a form order granting the motion to dismiss without making any factual findings.” Id. at 879. The court granted the motion on the basis that the child was born during legal marriage, so the legal father was the presumed biological father. Id. On appeal, DOR argued “that the presumption of legitimacy does not need to be rebutted at the outset of a paternity action, and that the dismissal was premature,” and also that “the issues of the best interests of the child and the presumption of legitimacy should be dealt with during the proceedings.” Id. This court agreed, explaining:

The common denominator in these cases is the best interests of the child. To that end, the courts require a determination of the child’s best interests. Some circumstances require specific procedures be followed in evaluating a child’s best interests. For example, if paternity is contested, the child’s legitimacy is at issue, and the legal father has not had notice or an opportunity to be heard, the trial court is required to appoint a guardian ad litem and hear from the guardian and all the parties before proceeding.... At a minimum, the court must evaluate the best interests of the child.

Id. (citations omitted) (emphasis added).

Although the trial court questioned whether an evidentiary hearing was necessary, and the attorneys for the mother and the appellant suggested that was the case, the trial court granted the dismissal without a hearing. This was error under the foregoing authority.

The facts of this case do not appear to fit within the pattern of any of the foregoing cases, although it is closest to L.J. v. A.S., 25 So.3d 1284, 1289 (Fla. 2d DCA 2010), where the biological father brought a petition for paternity which the mother opposed, although her husband and the child’s legal father did not oppose it. Unlike Kendrick or this case, DCF was not involved in L.J. In this case, however, both the mother and the legal father have surrendered their rights to the child. Only appellant, the biological father of the child, desires to be a parent to this child, and DCF, which now has legal custody of the child, does not contest the paternity proceedings. Perhaps the court in L.J. framed this dispute the best when it said:

The child at issue here has a biological father willing, able, indeed eager, to parent and support his offspring; a legal father who apparently is not; and a mother who apparently wishes to deprive the child of a real father.... In light of Kendrick ..., we conclude the circuit court erred in dismissing L.J.’s petition with prejudice based on lack of standing as a matter of law and without a hearing to afford L.J. the opportunity to establish his standing.

Id. at 1289.

We reverse the order dismissing appellant’s petition for determination of paternity. The trial court must hold an evidentia-ry hearing to determine whether appellant has standing to bring this petition. The court should evaluate all the circumstances and DCF’s position regarding the biological father in determining the father’s standing and the child’s best interests.

Reversed and remanded for further proceedings consistent with this opinion.

STEVENSON and CONNER, JJ., concur.

      . The court may also wish to consider whether the mother who has surrendered her rights has any standing to object to the determination of paternity. We do not decide that issue, because it has not been raised by the parties.