author: BLACK, Judge.

text:
    Luis E. REYES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5470.
    District Court of Appeal of Florida, Second District.
    March 21, 2012.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Luis Reyes, Jr., challenges his judgments and sentences in various cases. We affirm all of the convictions and sentences but write to address procedural issues with regard to Reyes’ sentences in case number CRC09-020773CF.

In CRC09-020773CF, Reyes was charged with two counts of sexual battery, in violation of section 794.011(3), Florida Statutes (2009), life felonies; burglary with a battery, in violation of section 810.02(2)(a), Florida Statutes (2009), a first-degree felony punishable by life; and home invasion robbery, in violation of section 812.135(2)(c), Florida Statutes (2009), a first-degree felony. Reyes entered an open plea of no contest to all charges and was sentenced to thirty years in prison followed by ten years of sex offender probation on each count, to run concurrently.

Reyes timely filed his notice of appeal on October 29, 2010. On November 10, 2010, he filed a motion to reconsider his sentences in the trial court. The trial court granted the motion and reduced Reyes’ sentences in case number CRC09-020773CF to twenty-five years in prison, concurrent on all counts. The court did not orally pronounce any probationary period, and it did not change the sentences on the other cases. The order modifying Reyes’ sentences reflects twenty-five year prison terms with no probationary period. However, attached to that order, and also recorded, is an “order amending supervision order” which states that the Department of Corrections’ sentences for Reyes have changed from thirty years to twenty-five years and that the probationary period and conditions as previously ordered remain in effect.

It appears that the trial court considered Reyes’ motion to reconsider sentence as a motion to reduce or modify under Florida Rule of Criminal Procedure 3.800(c), which permits reduction or modification of legal sentences within certain timeframes. However, the trial court was without authority to rule upon the motion as the filing of Reyes’ notice of appeal had divested it of jurisdiction. See Fla. R.Crim. P. 3.800(a); Fla. R.App. P. 9.600(b); Liranzo-Cruzata v. State, 6 So.3d 114, 114 (Fla. 2d DCA 2009). But see Fla. R.Crim. P. 3.800(b)(2) (expressly providing for motions during the pendency of appeal); Fla. R.App. P. 9.020(h). Further, this court had not otherwise relinquished jurisdiction. Cf. Hammond v. State, 62 So.3d 1152, 1154 (Fla. 2d DCA 2011). Thus, the trial court’s “order amending supervision order,” rendered March 9, 2011, and order modifying Reyes’ sentences, rendered April 24, 2011, are void and unenforceable. See Stang v. State, 24 So.3d 566, 568-70 (Fla. 2d DCA 2009). As a result, Reyes can only be held pursuant to the original sentences imposed-thirty years in prison followed by ten years’ probation, to run concurrently, and it is that sentence that we affirm.

Accordingly, we affirm Reyes’ judgments and sentences without prejudice to any right he may have to file a timely rule 3.800(c) motion following the issuance of a mandate in this appeal or any other appropriate postconviction motion.

Affirmed.

NORTHCUTT and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    DELVI, INC., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Mario Pantaleon, Appellees.
    No. 3D11-1091.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Jason H. Clark, West Palm Beach, for appellant.
    Louis A. Gutierrez, Senior Attorney, for Florida Unemployment Appeals Commission; David J. White, Jupiter, for Mario Pantaleon.
    Before SUAREZ, ROTHENBERG, and FERNANDEZ, JJ.
   SUAREZ, J.

Delvi, Inc. (“Delvi”), appeals an order of the Florida Unemployment Appeals Commission (“Commission”) affirming the referee’s finding that Mario Pantaleon (“Pan-taleon”) was entitled to unemployment compensation benefits. We affirm the Commission’s decision that Pantaleon’s conduct did not disqualify him from receiving unemployment benefits.

The claimant worked for Delvi since November 2, 2006, as a warehouse worker. On October 21, 2010, when Pantaleon’s immediate supervisor asked him to move a pallet, he told his supervisor he would move the pallet after he finished his lunch, and raised his middle finger at the supervisor, as he contends, in jest. He was discharged from employment on October 21, 2010, for showing disrespect to his supervisor and not performing his job to his employer’s expectations. The appeals referee concluded the claimant was qualified for benefits because he was discharged from his employment for alleged misconduct that was not proven by substantial, competent evidence. The employer appealed the referee’s decision to the Commission. The Commission affirmed the referee’s decision holding the claimant qualified to receive benefits. Delvi now appeals the final order of the Commission.

The issue on appeal is whether there was substantial, competent evidence, consistent with the findings of the Commission, that Pantaleon’s conduct did not disqualify him from receiving unemployment benefits from his employer. See § 120.68(7)(b), Fla. Stat. (2010); Aiello v. R.C. Props., Inc., 654 So.2d 287 (Fla. 3d DCA 1995). A single incident of insubordination does not amount to misconduct. See, e.g., Montalbano v. Unemployment Appeals Comm’n, 873 So.2d 417 (Fla. 4th DCA 2004) (holding that employee who had argument with her supervisor over a work order and was fired for insubordination when she began to yell, did not involve misconduct); Tabares v. Fla. Unemployment Appeals, 838 So.2d 1214 (Fla. 3d DCA 2003) (holding that employee’s raising her voice during meeting with supervisor did not constitute misconduct connected with work); Donnell v. Univ. Cmty. Hosp., 705 So.2d 1031 (Fla. 2d DCA 1998) (holding that housekeeping department employee discharged for violating hospital rule and having argument with supervisor amounted to poor judgment and did not constitute misconduct). As found by the Commission, “[t]he claimant’s actions may have displayed poor judgment, raising his middle finger at his supervisor, but does not amount to misconduct connected with his work.” There is substantial, competent evidence to support the referee’s finding that Pantaleon was not discharged for employee misconduct. We therefore affirm the Commission’s decision that Panta-leon’s conduct did not disqualify him from receiving unemployment benefits.

Affirmed.


author: PER CURIAM.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. William SWINDOLL, Appellee.
    No. 3D10-2864.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Cooney Trybus Kwavnick Peets and Warren B. Kwavnick, Ft.Lauderdale, for appellant.
    Kimberly L. Boldt, Miami; Hoffman & Hoffman and John D. Hoffman, Hollywood, for appellee.
    Before ROTHENBERG, SALTER, and EMAS, JJ.
   PER CURIAM.

This is an appeal of a judgment awarding attorney’s fees pursuant to a proposal for settlement. Based on this Court’s reversal of the underlying judgment, the parties have stipulated to the lifting of our previously-imposed stay and to the reversal of the attorney’s fee judgment. Accordingly, our stay ordered February 3, 2011, is hereby lifted, and the judgment of October 1, 2010, is hereby vacated.


text:
    Norberto IBANEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1030.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Ricardo Corona, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).


text:
    Dwight Johannes DOWNS, Appellant, v. The STATE of Florida, DEPARTMENT OF ENVIRONMENTAL PROTECTION f/b/a Department of Natural Resources, Miami-Dade County and Board of Trustees of the Internal Improvement Trust Fund, Appellees.
    No. 3D11-600.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Austin Carr, Coral Gables, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County and Eric K. Gressman, Assistant County Attorney; Anthony & Associates, Andrew J. Anthony and Bradley A. Silverman, Coral Gables, for appellees.
    Before WELLS, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See City of Lake Worth v. Nicolas, 434 So.2d 315 (Fla.1983).


text:
    Joseph GOLPHIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-7.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Joseph Golphin, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    John Mark KULO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2318.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    John Kulo, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm in all respects. We remand, however, for correction of a scrivener’s error. The order reflects that the appellant violated conditions of probation 6 and 8. The record demonstrates, however, that he was found to have violated condition 5 and a special condition concerning attendance at AA meetings. The order on remand should be corrected as indicated.

AFFIRMED and REMANDED.

PALMER, MONACO and TORPY, JJ., concur.


author: COHEN, J.

text:
    Willie SHADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1483.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

We reverse Mr. Shade’s conviction for attempted second-degree murder based upon the fundamentally erroneous jury instruction on the lesser-included attempted voluntary manslaughter offense. Roundtree v. State, 77 So.3d 846 (Fla. 5th DCA 2012); Cannon v. State, 77 So.3d 684 (Fla. 5th DCA 2011); Willis v. State, 70 So.3d 739 (Fla. 5th DCA 2011); Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011). As done previously, we express conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.


text:
    Thomas C. LAURITO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-644.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    Thomas C. Laurito, Defuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Although the trial court conducted an evidentiary hearing on Appellant’s rule 3.850 motion, it failed to make findings of fact and conclusions of law as required by rule 3.850(d). Accordingly, we reverse and remand this cause with instructions that the trial court make the required findings. Dillbeck v. State, 882 So.2d 969 (Fla.2004).

REVERSED and REMANDED.

MONACO, TORPY and COHEN, JJ., concur.


text:
    Omar LONG, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D10-810, 5D10-811.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    William Mallory Kent, of Law Office of William Mallory Kent, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Omar Long (Defendant) appeals the judgment finding him guilty of manslaughter by culpable negligence and the order revoking his probation on a previous charge. Defendant argues that: 1) the evidence presented by the State was legally insufficient to convict him of manslaughter; and 2) the trial court erred in not instructing the jury on the lesser included offense of leaving a child unattended in a motor vehicle pursuant to section 316.6135, Florida Statutes (2009). In addition, Defendant requests that the order revoking probation be reversed in the event his manslaughter conviction is reversed.

We find that there was sufficient evidence to submit the manslaughter charge to the jury and affirm on that ground ■without further discussion. With respect to Defendant’s claim that the trial court erred in failing to instruct the jury on a lesser included offense, we affirm without prejudice to Defendant to file an appropriate motion for postconviction relief. We also affirm the order revoking Defendant’s probation.

AFFIRMED.

SAWAYA, PALMER and JACOBUS, JJ., concur.

      . Long filed separate appeals regarding his manslaughter conviction, case number 5D10-811, and violation of probation, case number 5D10-810. Those appeals were consolidated by this court.


author: JACOBUS, J.

text:
    Patrick WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3545.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    Patrick Washington, Polk City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Salliant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

The appellant, Patrick Washington, appeals the order summarily denying his rule 3.800(a) motion to correct illegal sentence. We reverse.

Washington was originally sentenced in three separate cases on the same day in Osceola County. His sentences included terms of incarceration in each case followed by twenty years’ probation in one case, Case Number 1992-CF-1474. After serving out his terms of incarceration, Washington was released on probation. He subsequently violated his probation and, in March 2011, was resentenced to 10 years in the Department of Corrections (DOC) with 3 years and 169 days credit for time served.

While the court gave Washington credit for time served, it did not indicate whether this credit included prison credit and it failed to check the box instructing DOC to compute and apply credit for time served. Further, it is unclear whether the award is correct. We, therefore, reverse and remand the case to the trial court so it can clarify the credit awarded to ensure that it only includes jail credit and check the box on Washington’s sentencing document stating “DOC shall apply original sentence jail time credit and shall compute and apply credit for time served.” See Johnson v. State, 881 So.2d 88 (Fla. 5th DCA 2004); see also Scott v. State, 872 So.2d 1011 (Fla. 5th DCA 2004).

REVERSED and REMANDED with directions.

PALMER and MONACO, JJ., concur.


text:
    Orlando GOMEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0523.
    District Court of Appeal of Florida, First District.
    March 27, 2012.
    Orlando Gomez, pro se, Petitioner.

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

DENIED. See Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980).

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


text:
    Jerry MEANS, Petitioner, v. STATE of Florida, FIRST JUDICIAL CIRCUIT for, Okaloosa County, Florida, and Second Judicial Circuit for, Leon County, Florida, Respondents.
    No. 1D12-0465.
    District Court of Appeal of Florida, First District.
    March 27, 2012.
    Jerry Means, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Gaither v. McDonough, 968 So.2d 57 (Fla. 1st DCA 2007).

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


text:
    Jason D. KIRK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6777.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Jason D. Kirk, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the December 29, 2010, judgment and sentence in Escambia County Circuit Court case number 2010-CF-001596-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    Kevin OSGOOD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6643.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Kevin Osgood, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the April 8, 2011, Order on Defendant’s Motion for Post-Conviction Relief Pursuant to Rule 3.850, in Duval County Circuit Court case number 2005-CF-04624-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    Dustin JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6504.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Dustin Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal, filed December 5, 2011, is treated as a motion for reinstatement of the petition for belated appeal in case number 1D10-3499, filed July 1, 2010, and is granted. The proceeding in case number 1D10-3499 is hereby reinstated.

Upon consideration of the state’s response filed February 8, 2012, Petitioner is hereby granted a belated appeal of the April 22, 2009, order denying motion to correct illegal sentence in Bay County Circuit Court case number 02-CF-3449-H. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    Corey MILLEDGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6231.
    District Court of Appeal of Florida, First District.
    March 28, 2012.

      Corey Milledge, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted in part. On or before April 12, 2012, the circuit court shall rule on the pending motion to discharge counsel. Because we are confident that the circuit court will issue a ruling, we withhold issuance of the formal writ.

Inasmuch as the petition seeks a writ of mandamus compelling the lower tribunal to rule on Petitioner’s 3.850 motion, it is denied. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    Kevin PEACOCK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5902.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Kevin Peacock, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the June 24, 2011, Order Dismissing With Prejudice Defendant’s “Amended Motion for Postconviction Relief,” in Escambia County Circuit Court case number 2002-CF-005049A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(6)(D).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    Dustin JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3499.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Dustin Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal, filed December 5, 2011, is treated as a motion for reinstatement of the petition for belated appeal in case number 1D10-3499, filed July 1, 2010, and is granted. The proceeding in case number 1D10-3499 is hereby reinstated.

Upon consideration of the state’s response filed February 3, 2012, Petitioner is hereby granted a belated appeal of the April 22, 2009, order denying motion to correct illegal sentence in Bay County Circuit Court case number 02-CF-3449-H. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

ROBERTS, CLARK, and SWANSON, JJ., concur.


author: GERBER, J.

text:
    Jameca MUNROE, Appellant, v. Mackenson R. OLIBRICE, Appellee.
    No. 4D11-1570.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Pamela M. Gordon of Law Offices of Pamela M. Gordon, P.A., Hollywood, for appellant.
    Mackenson R. Olibrice, Oakland Park, pro se.
   GERBER, J.

In this dissolution case, the wife appeals from the circuit court’s orders establishing a time-sharing schedule regarding the parties’ minor children. She argues that the court erred by establishing the schedule: (1) without considering the children’s best interests; (2) without addressing parental responsibility; and (3) without creating a parenting plan. We agree as to the second and third arguments and reverse.

At the end of the final hearing when the court granted the dissolution, the court stated the following regarding time-sharing:

I think the children should be with the father Monday through Thursday. They should be on the first weekend of the month with the father, return to school on Monday morning.... [S]o long as [the husband does not] have a job I don’t see any reason the children shouldn’t be with [the husband] during the week and there’s no need for day care, after care, pre care, post care, or any other kind of care. On the three weekends a month which is the mother’s they will be returned to the father by 7:30 on Sunday evening.

The wife objected to the time-sharing schedule on the ground that the husband presented no evidence justifying the reduction of her time with the children from twenty nights per month to six nights per month. The father responded that the court’s schedule provided better stability than the alternating night schedule which the court ordered during the pendency of the case. The court agreed with the father’s response.

Following the hearing, the court entered a one-page order addressing matters which the parties raised during the final hearing. Regarding time-sharing, the order stated: “Father have from Sun nite at 7:30 p.m. to Friday am (school or other), Mother has 2nd, 3rd, & 4th weekends (Father 1st weekend).” The order did not state the basis for the court’s time-sharing schedule and did not address parental responsibility.

The wife filed a motion for rehearing as to the time-sharing schedule. The motion argued that the court erred by failing to: (1) engage in a “best interest” analysis pursuant to section 61.13, Florida Statutes (2010); (2) order shared parental responsibility pursuant to section 61.13(2)(c)2., Florida Statutes (2010); and (3) establish a parenting plan pursuant to section 61.13(2)(b), Florida Statutes (2010).

In response to the motion, the court entered an additional order stating: “The Court set a more stable relationship for the children and determined that it is in the best interest of the children pursuant to FS 61.13. The children have improved measurably in school work, etc.” The order also amended the time-sharing schedule to address time-sharing for Christmas and the children’s birthdays and spring vacation.

The wife appealed both orders. She argues that the court erred by establishing the time-sharing schedule: (1) without considering the children’s best interests; (2) without addressing parental responsibility; and (3) without creating a parenting plan. Given these arguments, we review the orders for an abuse of discretion. See Beharry v. Drake, 52 So.3d 790, 793 (Fla. 5th DCA 2010) (“A trial court’s custody or time sharing determination is reviewed under the abuse of discretion standard of review.”).

We reject the wife’s first argument. It appears that the circuit court considered the children’s best interests in establishing the time-sharing schedule. In Winters v. Brown, 51 So.3d 656 (Fla. 4th DCA 2011), we held:

The determination of the best interests of the child is made by evaluating over twenty factors affecting the welfare and interests of the child. § 61.13(3), Fla. Stat. (2008). While a trial court need not address each of these factors independently, a trial court must make a finding that the time-sharing schedule is in the child’s best interests. The requisite findings must either be stated on the record or set out in the order. A trial court’s ultimate finding that an award of primary residential custody to one parent is in the best interests of a child is sufficient to sustain the award so long as there is substantial, competent evidence in the record that permits the court to properly evaluate the relevant factors.

51 So.3d at 658 (other internal citations and quotations omitted).

Here, the circuit court, in its order on the wife’s motion for rehearing, found that the time-sharing schedule was in the children’s best interests. Although the court did not address independently each of the twenty factors affecting the welfare and interests of the children under section 61.13(3), the court provided two grounds which fall within two of the factors. First, as stated on the record at the final hearing, the court found that the husband would be in a position to care for the children so that they would not require “day care, after care, pre care, post care, or any other kind of care.” See § 61.13(3)(b), Fla. Stat. (2010) (“The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.”). Second, as stated at the final hearing and in the order on the wife’s motion for rehearing, the court found that moving away from the alternating night schedule and providing the husband with more time “set a more stable relationship for the children” and caused the children to improve “measurably in school work.” See § 61.13(3)(k), Fla. Stat. (2010) (“The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.”).

Turning to the wife’s second and third arguments that the court erred by not addressing parental responsibility and not creating a parenting plan, we agree with the wife. “The statutes now require the court to create or approve a ‘parenting plan’ which establishes how divorced parents will share the responsibilities of chil-drearing and decision-making with regard to the child and sets forth a time-sharing schedule.” In re Amendments to the Fla. Family Law Rules, 995 So.2d 445, 445 (Fla.2008).

Here, the court did not create or approve any parenting plan, much less one which satisfies the requirements of section 61.13(2)(b), Florida Statutes (2010):

A parenting plan approved by the court must, at a minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; a designation of who will be responsible for any and all forms of health care, school-related matters including the address to be used for school-boundary determination and registration, and other activities; and the methods and technologies that the parents will use to communicate with the child.

Because the court did not create or approve a parenting plan, much less one which satisfies the requirements of section 61.13(2)(b), we are required to reverse the orders establishing the time-sharing schedule. It appears from Chapter 61 that a court is to determine a time-sharing schedule as part of its creation of a parenting plan, not as a separate determination. See § 61.13(3), Fla. Stat. (2010) (“For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a timesharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration.”). Thus, the court must revisit its time-sharing schedule determination in consideration of the requirements of sections 61.13(2)(b) and 61.13(3). See Schoonmaker v. Schoonmaker, 718 So.2d 867, 868 (Fla. 4th DCA 1998) (remand required on custody award for clarification as to whether trial court intended to award shared parental responsibility, where final judgment stated only that the children would be best served by having one parent designated as the primary residential custodian, but did not address whether the court intended to award sole or shared parental responsibility).

To assist the court in creating a parenting plan, we remind the court that our supreme court has approved form parenting plans codified in Florida Family Law Rule of Procedure 12.995. In re Amendments to the Fla. Supreme Court Approved Family Law Forms, 20 So.3d 173, 173-74 (Fla.2009). The court shall have the discretion to create the parenting plan based on the existing record or to schedule another hearing so that the parties may present further evidence related to the parenting plan’s requirements. As part of its creation of the parenting plan, the court is free to maintain or modify the time-sharing schedule'in consideration of the requirements of sections 61.13(2)(b) and 61.13(3). Until the court creates the parenting plan, however, the parties shall maintain the time-sharing schedule which was the subject of this appeal.

Reversed and remanded.

CIKLIN and LEVINE, JJ., concur.

      . We find no merit in the wife's fourth argument on appeal, which we have chosen not to address in this opinion.


text:
    Waldith G. THOMPSON and Marshia Sue Durham, Appellants, v. NOMURA CREDIT AND CAPITAL, INC., Appellee.
    No. 4D10-3983.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    S. Tracy Long of Law Offices of S. Tracy Long, P.A., Deerfield, for appellants.
    Heidi J. Weinzetl of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellee.
   PER CURIAM.

Affirmed. See Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202 (Fla. 4th DCA 2010).

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    E.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2871.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before LAGOA, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. State v. Hawthorne, 573 So.2d 330 (Fla.1991); Ramirez v. State, 448 So.2d 1 (Fla. 3d DCA 1984).


text:
    Eddie G. WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-454.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.
    Rehearing Denied April 12, 2012.
    Eddie G. Woods, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011) (citing State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011) [review granted, 71 So.3d 117 (Fla.2011)], and acknowledging “uncertainty caused by Shelton [v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011)]” but reaffirming its view that section 893.13 is constitutional).


author: ROTHENBERG, J.

text:
    T.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-869.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

T.D., a juvenile, appeals from an adjudication of delinquency for resisting an officer without violence, in violation of section 848.02, Florida Statutes (2010). To support a conviction for resisting an officer without violence under section 843.02, the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s actions, by his words, conduct, or a combination thereof, constitute obstruction or resistance of the lawful execution of a legal duty. M.J. v. State, 67 So.3d 1189, 1190 (Fla. 3d DCA 2011).

The sole issue on appeal is whether the officer was engaged in the lawful execution of a legal duty when she arrested T.D. Because the record supports the existence of probable cause, the officer was engaged in the lawful execution of a legal duty. See id. (“The element of lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrant-less arrest.”). Accordingly, we affirm T.D.’s adjudication for resisting an officer without violence.

Affirmed.

      . The fact that the State did not prevail at trial on the underlying criminal activity providing the basis for the arrest, battery on a school official or interference with the function of an educational institution, does not defeat the existence of probable cause supporting an arrest. See W.J. v. State, 18 So.3d 1259, 1260 (Fla. 3d DCA 2009); see also E.W. v. State, 873 So.2d 485, 488 (Fla. 1st DCA 2004).


author: TAYLOR, J.

text:
    Antonio Bernard ROWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3235.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TAYLOR, J.

Antonio Rowell appeals the denial of his motion to suppress evidence and conviction for possession of a firearm by a convicted felon. We reverse, holding that the war-rantless entry into appellant’s apartment cannot be justified either under the “exigent circumstances” doctrine or as a valid protective sweep incident to appellant’s arrest outside the apartment.

Appellant was charged by second amended information with possession of a firearm by a convicted felon. Appellant filed a pre-trial motion to suppress physical evidence, arguing that the firearm was seized as a result of an unlawful warrant-less search of his apartment.

The evidence at the suppression hearing revealed that on January 3, 2010, the police were dispatched to an apartment complex in response to a “shots fired” call. The police arrived at the complex within about a minute of the dispatch and detained several individuals at the scene, including appellant. The officers located a shell casing in front of a first floor apartment. The officers established a perimeter around the entire apartment complex.

The alleged victim told the police that appellant had shot at him from the second floor balcony. One of the testifying officers acknowledged there was no indication that there was a second shooter. The other testifying officer at one point stated in his testimony that appellant was “one of the shooters,” but this officer later acknowledged that he had no knowledge of a second shooter.

Appellant’s apartment was located on the third floor of the complex. After appellant was placed in custody, the officers decided to search appellant’s apartment for the safety of everyone at the scene and to determine if any other suspects were in the apartment. The door to appellant’s apartment was “wide open.” The officers then entered the apartment and conducted a protective sweep for “officer safety.” At the time of the initial entry, the officers did not know whether there was anybody in appellant’s apartment. During the protective sweep, the officers located a firearm on the kitchen counter. Once the officers determined that there were no other people in the apartment, they exited the apartment and sealed it.

Later, the police obtained written consent to search the apartment from appellant’s girlfriend, a co-occupant of the apartment who was present at the apartment complex. But this occurred after the police had already entered the apartment the first time.

One of the officers testified that based on his training and experience, the police would have had sufficient grounds to obtain a warrant to search appellant’s apartment. He acknowledged on cross-examination that a perimeter had been established around the entire apartment complex and that there would have been ample time to secure a search warrant.

At the conclusion of the hearing, the trial court denied the motion to suppress. The court appeared to conclude that exigent circumstances justified the warrant-less entry, reasoning that the search was constitutional because the situation “was still a dynamic fluid and changing scene, and it is not unreasonable for officers to search the area where witnesses identify shots being fired from, to make sure its secure.” The court further reasoned that even if the officers’ entry was not appropriate, there would have been inevitable discovery of the evidence.

Following the denial of the motion to suppress, appellant pled guilty to the charge of possession of a firearm by a convicted felon, expressly reserving the right to appeal the denial of his motion to suppress the physical evidence.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996). While an appellate court accords a presumption of correctness to the trial court’s ruling on motion to suppress with regard to the trial court’s determination of historical facts, an appellate court independently reviews the mixed questions of law and fact that determine constitutional issues. Tengbergen v. State, 9 So.3d 729, 733 (Fla. 4th DCA 2009).

A private home is an area where a person enjoys the highest reasonable expectation of privacy under the Fourth Amendment. Ruiz v. State, 50 So.3d 1229, 1231 (Fla. 4th DCA 2011). Even when police officers have probable cause, they may not enter a dwelling without a warrant absent a recognized exception to the warrant requirement, such as consent or exigent circumstances. See Rebello v. State, 773 So.2d 579, 580 (Fla. 4th DCA 2000).

“[E]xigent circumstances exist where the occupants of a house are aware of the presence of someone outside, and are engaged in activities that justify the officers in the belief that the occupants are actually trying to escape or destroy evidence.” Lee v. State, 856 So.2d 1133, 1138 (Fla. 1st DCA 2003) (citation omitted) (emphasis in original). But “a key ingredient of the exigency requirement is that the police lack time to secure a search warrant.” Rolling v. State, 695 So.2d 278, 293 (Fla.1997). The state bears the burden “to demonstrate that the procurement of a warrant was not feasible” because of the exigencies of the situation. Hornblower v. State, 351 So.2d 716, 717 (Fla.1977) (citation omitted).

Similarly, the Fourth Amendment permits a protective sweep incident to an arrest if the officer possesses a reasonable belief based on specific and articulable facts which warrant the officer in believing that the area harbors an individual posing a danger to the officer or others. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The Supreme Court has defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” Id.

A protective sweep of a home, incident to an arrest outside the home, cannot be justified routinely. See Mestral v. State, 16 So.3d 1015, 1018 (Fla. 3d DCA 2009). Where a defendant is arrested outside his or her home, a warrantless protective sweep of the defendant’s home is permissible only if the officers have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence. See Diaz v. State, 34 So.3d 797, 802 (Fla. 4th DCA 2010). The arresting officer must have both (1) a reasonable belief that third persons are inside, and (2) a reasonable belief that the third persons were aware of the arrest outside the premises and might destroy evidence, escape or jeopardize the safety of the officers or the public. Id. Where suspects are arrested outside a home and police officers have no reason to believe that other individuals dangerous to their safety are inside the home, entry into the dwelling cannot be justified merely because the police do not know, as an absolute certainty, whether more people could be in the home. See Klosieski v. State, 482 So.2d 448, 449-50 (Fla. 5th DCA 1986) (“[T]he police had no reason to believe that other individuals, dangerous to their safety, were inside the house.... The fact that the police did not know, as an absolute certainty, whether more people were in the house ... cannot justify entry into the house.”).

In this case, the warrantless entry cannot be justified under the “exigent circumstances” doctrine or as a valid protective sweep incident to an arrest. At the time of the initial protective sweep, appellant had already been taken into custody outside his apartment. And one of the officers admitted on cross-examination that there was ample time to secure a search warrant. Further, the victim, who was interviewed at the scene, did not mention a second shooter, nor was there any objective indication that a second shooter was involved. Moreover, the officers had no information suggesting that there was anybody inside appellant’s apartment. A warrantless entry cannot be justified based on unfounded speculation that there could be someone inside the home who might pose a threat to officer safety. See Mestral, 16 So.3d at 1018 (protective sweep was impermissible where “the officers entered the residence as part of a routine practice and not on the basis of any articulable facts which would warrant a reasonable belief that there was any dangerous individual inside who posed a threat to those on the arrest scene.”). Under the circumstances of this ease, we conclude that the officers did not have a reasonable belief that third persons were inside appellant’s apartment, much less a reasonable belief that any such persons were aware of the arrest and might destroy evidence or pose a threat to safety.

We next address whether the evidence of the firearm could nevertheless be admissible pursuant to the “inevitable discovery” doctrine.

Under the inevitable discovery doctrine, if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, the evidence will be admissible. See Nix v. Williams, 467 U.S. 431, 434, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). For the inevitable discovery doctrine to apply, the State must establish that the evidence would have been discovered “by means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure.” Craig v. State, 510 So.2d 857, 863 (Fla.1987). Some courts also require the prosecution to show that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct. See United States v. Virden, 488 F.3d 1317, 1322 (11th Cir.2007). “This second requirement is especially important. Any other rule would effectively eviscerate the exclusionary rule, because in most illegal search situations the government could have obtained a valid search warrant had they waited or obtained the evidence through some lawful means had they taken another course of action.” Id. at 1322-23.

In reviewing federal decisions on the inevitable discovery doctrine, the First District explained that “the inevitable discovery doctrine will not be applied in every case where the police had probable cause for a search warrant, but failed to get one.” See McDonnell v. State, 981 So.2d 585, 593 (Fla. 1st DCA 2008). Relevant factors include whether the police made an effort to get a warrant prior to the illegal search and whether strong probable cause existed for the search warrant. Id.

In McDonnell, the First District found that the inevitable discovery doctrine applied where the police had probable cause to obtain a warrant and were in the process of obtaining a warrant when the defendant gave consent to the search— though that consent was later determined to be involuntary. Id. Likewise, in similar circumstances, our court has applied the inevitable discovery doctrine where the police had probable cause but aborted the warrant process after obtaining constitutionally deficient consent from the defendant’s wife. See Conner v. State, 701 So.2d 441, 443 (Fla. 4th DCA 1997).

Here, contrary to the state’s argument, the inevitable discovery doctrine does not apply merely because the police may have had probable cause to obtain a search warrant. In this case, unlike in McDonnell and Conner, the prosecution made absolutely no showing that efforts to obtain a warrant were being actively pursued prior to the occurrence of the illegal conduct. Operation of the “inevitable discovery” rule under the circumstances of this case would effectively nullify the requirement of a search warrant under the Fourth Amendment. Therefore, we decline to apply the inevitable discovery doctrine to this case.

In sum, because there was time to secure a warrant and the officers did not have a reasonable belief that third persons were inside appellant’s apartment who might destroy evidence or pose a threat to safety, the warrantless entry of appellant’s apartment cannot be justified either under the “exigent circumstances” doctrine or as a valid protective sweep incident to an arrest. The warrantless entry into appellant’s apartment thus violated the Fourth Amendment. Furthermore, because the state cannot show that officers were actively pursuing any lawful means at the time of the illegal conduct, it cannot evade the suppression of the evidence by utilizing the inevitable discovery exception to the exclusionary rule. Finally, because the state failed to prove that the taint of the illegal protective sweep was dissipated by subsequent events, appellant’s girlfriend’s subsequent written consent for a search of the apartment was invalid. See, e.g., Diaz, 34 So.3d at 803-04.

Reversed,.

POLEN and STEVENSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jeffrey Mark PUGH, Appellee.
    No. 4D10-4634.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Dismissed. See State v. Gray, 721 So.2d 370 (Fla. 4th DCA 1998).

POLEN, HAZOURI and LEVINE, JJ., concur.


text:
    Nicholas THOMAS, Appellant, v. TIRE CENTERS LLC and Florida Unemployment Appeals Commission, Appellee.
    No. 4D11-703.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.

      Nicholas Thomas, Plantation, pro se.
    M. Elaine Howard, Deputy General Counsel of Unemployment Appeals Commission, Tallahassee, for appellee Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    Renald JOACHIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5280.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant, Renald Joachin, appeals his criminal judgment and sentence for delivery of cocaine at or near a child care facility. He raises five points on appeal: (1) the state failed to prove the delivery occurred within 1000 feet of a child care facility as defined by statute; (2) the court erred in limiting the defense cross-examination of the two arresting officers; (3) fundamental error occurred in that the trial court instructed the jury on the uncharged theory of delivery of cocaine within 1000 feet of a school; (4) fundamental error occurred because the jury found delivery “at or near” a child care facility rather than within 1000 feet of one; and (5) the conviction and sentence for delivery of cocaine must be reversed for fundamental error because they are based on a facially unconstitutional statutory scheme.

As to Point 1, the state properly concedes in its answer brief that the evidence adduced at trial was insufficient to establish that the defendant delivered cocaine within 1000 feet of a child care facility, as defined in section 402.302, Florida Statutes. See Cox v. State, 764 So.2d 711, 713 (Fla. 1st DCA 2000) (reversing the defendant’s conviction for sale of cocaine within 1000 feet of a school where the sole evidence that the facility was a school was an officer’s testimony that he saw children playing outside the building with adults present). Similarly, in this case, the officer’s testimony failed to establish that the facility “provides child care for more than five children unrelated to the operator” and that the facility “receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit.” See § 402.302(2), Fla. Stat. (2010).

Accordingly, we reverse and remand for entry of a judgment and sentence to the lesser included charge of delivery of cocaine. See Coward v. State, 944 So.2d 532, 533 (Fla. 4th DCA 2006) (reversing the defendant’s two convictions for sale within 1000 feet of a school because there was no evidence as to the age of the students and remanding with direction that the convictions be reduced to the lesser included crime of sale of cocaine). Our reversal on Point 1 renders Points 3 and 4 moot. As to the remaining issues, we find no merit.

Reversed and Remanded.

POLEN, TAYLOR and HAZOURI, JJ., concur.


text:
    Shara N. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4422.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.

      Shara N. Cooper, Fort Lauderdale, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Shara N. Cooper has filed a petition which claims that she received ineffective assistance of appellate counsel in her direct appeal in Cooper v. State, 45 So.3d 490 (Fla. 4th DCA 2010). Because petitioner demonstrates that appellate counsel failed to raise an issue which the Florida Supreme Court has held constitutes fundamental error that is per se reversible and not subject to harmless error analysis, we grant the petition.

A jury convicted petitioner of second-degree murder. The court instructed the jury regarding the lesser-included offense of manslaughter by act using the same standard jury instruction that was held to be defective in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010). The erroneous instruction provided that to prove manslaughter by act the State had to prove that defendant “intentionally caused” the death of the victim. Because the erroneous instruction made it more difficult to establish the lesser-included offense that was only one step removed from the second-degree murder conviction, the Florida Supreme Court held that use of the instruction constituted fundamental error, not subject to harmless error analysis, and required a new trial as to the murder count. 39 So.3d at 359.

As in Montgomery, the jury in petitioner’s case was given the same erroneous standard jury instruction and the jury convicted petitioner of second-degree murder, an offense only one step removed from manslaughter. The jury convicted petitioner of other offenses which are not at issue and which are not impacted by this proceeding.

The initial brief in petitioner’s appeal was filed more than three months after the First District Court of Appeal decided Montgomery. The Florida Supreme Court issued its opinion in Montgomery while petitioner’s case remained in the pipeline, that is, before this court had decided petitioner’s appeal.

We agree with the various appellate decisions holding that appellate counsel was ineffective in failing to have raised the Montgomery issue under similar circumstances. Ferrer v. State, 69 So.3d 360 (Fla. 2d DCA 2011); Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011); Curry v. State, 64 So.3d 152 (Fla. 2d DCA 2011); Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011); Del Valle v. State, 52 So.3d 16 (Fla. 2d DCA 2010); Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009).

Because a new appeal would be redundant in this case, we reverse the conviction for second-degree murder, vacate the sentence on that count, and remand for a new trial or plea negotiations. See, e.g., Ferrer, 69 So.3d at 362; Del Valle, 62 So.3d at 19. Petitioner’s other convictions in this case are not impacted by this decision.

Petition granted.

MAY, C.J., WARNER and CIKLIN, JJ., concur.

      . The standard manslaughter by act jury instruction has since been corrected. See In re Amends. to Std. Jury Instrs. In Crim. Cases-Instr. 7.7, 41 So.3d 853 (Fla.2010); In re Amends, to Std. Jury Instrs. In Crim. Cases-Instr. 7.7, 75 So.3d 210 (Fla.2011). In 2008, before Montgomery, the instruction was changed to include language clarifying that ‘‘only an intent to commit an act which caused death” is required. In re Std. Jury Instrs. in Crim. Cases-Report No. 2007-10, 997 So.2d 403 (Fla.2008). The Second District Court of Appeal has held that the 2008 version of the instruction did not require intent to kill and was not fundamentally erroneous. Daniels v. State, 72 So.3d 227 (Fla. 2d DCA 2011), rev. granted, 79 So.3d 744 (Fla. Feb.3, 2012). Petitioner was tried in February 2008 before the December 2008 effective date of the amended instruction. In petitioner's case, the jury was given the same jury instruction at issue in Montgomery.


text:
    A.E., Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-173.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.
    Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

A.E. appeals the judgment for involuntary civil commitment entered pursuant to Chapter 394, Florida Statutes (2011), the “Baker Act.” Because there was competent substantial evidence to support the commitment, we affirm.

A.E., who was arrested in 2005 and charged with aggravated battery, was found incompetent on September 27, 2006, and has remained incompetent with no substantial probability that she will become competent to stand trial in the foreseeable future. A.E. suffers from schizophrenia and is paranoid. Despite taking her medications, when evaluated just prior to the hearing conducted by the trial court, A.E. was agitated, exhibited “unusual gestures,” was easily distractible, had difficulty focusing, was seen responding to voices, and at times appeared disorganized, unable to express herself in a rational manner, and delusional. A.E. has a long history of mental illness, perceptual disturbances, substance abuse, numerous hospitalizations, and non-compliance with treatment and medication. The trial court additionally noted that A.E. has poor insight as to her condition and mental health needs, she had to be placed on suicidal precautions approximately two weeks prior to the hearing, and numerous attempts to place her in the community have failed.

Based on these observations and findings, we conclude there is competent substantial evidence to satisfy the requirements of section 394.467(l)(a)l.b., Florida Statutes (2011), which is the sole criteria challenged on appeal.

Affirmed.


text:
    Jesse Ray PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6032.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, CLARK, and ROWE, JJ„ concur.


text:
    Tyrone WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5021.
    District Court of Appeal of Florida, First District.
    March 29, 2012.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant’s convictions and sentences are affirmed. The appellant was on probation for an attempted sexual battery when he committed the sexual battery and robbery in this case, and his status as a probationer satisfied the requirement for an enhanced sentence as a dangerous sexual offender under section 794.0115(2)(d), Florida Statutes, that the appellant be “under the jurisdiction of a court for a felony offense” when he committed the sexual battery.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    Mark Reese THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2623.
    District Court of Appeal of Florida, First District.
    March 29, 2012.
    Mark Reese Thompson, pro se, Appellant; Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm appellant’s judgment and sentence but remand for the trial court to correct the written order of revocation to specify the condition of probation appellant violated. The revocation order states that he violated all of the conditions alleged, but the record shows that the state had dropped two of the three charges. See Nickolas v. State, 66 So.3d 1077 (Fla. 1st DCA 2011).

WOLF, PADOVANO, and MARSTILLER, JJ., concur.


author: DAVIS, Judge. ALTENBERND, Judge,

text:
    PHILIP MORRIS USA, INC.; R.J. Reynolds Tobacco Company; and Liggett Group, LLC, Appellants, v. James L. DOUGLAS, as Personal Representative for the Estate of Charlotte M. Douglas, Appellee.
    No. 2D10-3236.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.

      William P. Geraghty of Shook, Hardy & Bacon, LLP, Miami, and Gary L. Sasso, Carlton Fields, Tampa, for Appellant Philip Morris USA, Inc.
    Gregory G. Katsas, Jones Day, Washington, D.C., for Appellant R.J. Reynolds Tobacco Company.
    Karen H. Curtis of Clarke Silverglate & Campbell, P.A., Miami, for Appellant Lig-gett Group, LLC.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, and Howard M. Acosta of Law Offices of Howard M. Acosta, St. Petersburg, for Appellee.
   DAVIS, Judge.

Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, and Liggett Group, LLC (the Tobacco Companies), challenge the final judgment entered after jury trial which awarded James L. Douglas, as the personal representative of the Estate of Charlotte M. Douglas, $2.5 million as damages on claims based on Mrs. Douglas’ smoking-related death.

Mrs. Douglas began smoking cigarettes in the mid-1960s as a teen. The complaint alleged that it was her addiction to cigarettes manufactured by the Tobacco Companies that caused her to develop chronic obstructive pulmonary disease (COPD) and lung cancer, which ultimately led to her death in 2008 at the age of sixty-two.

Mr. Douglas’ third amended complaint alleged claims for strict liability, negligence, breach of express and implied warranty, fraudulent concealment, and conspiracy to fraudulently conceal. Mr. Douglas originally sought both compensatory and punitive damages, but he dismissed his claim for punitive damages before trial. He did not submit a verdict form on the negligence, breach of warranty, and conspiracy to fraudulently conceal counts, and the jury did not decide those issues. The jury did find each of the named defendants strictly liable for Mrs. Douglas’ death, apportioning fault as follows: 50% to Mrs. Douglas, 18% to Philip Morris, 5% to R.J. Reynolds, and 27% to Liggett. Additionally, the jury found against Mr. Douglas on the issue of Mrs. Douglas’ detrimental reliance on concealment or omissions by the Tobacco Companies.

The crux of this appeal is whether the trial court erred in the application of the findings reached by a jury and affirmed by the Florida Supreme Court in the class action case Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006) (Engle III). Because we conclude that it did not, we affirm the trial court’s final judgment. However, because this issue is one with wide-ranging impact, we certify a question of great public importance.

In the Engle cases, the trial court certified a class made up of “[a]ll Florida citizens and residents” “and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Id. at 1256. At trial the jury made specific findings regarding the conduct of the several tobacco companies named as defendants. The Florida Supreme Court affirmed the class certification, as well as the jury’s findings (1) that smoking cigarettes causes certain named diseases; (2) “that nicotine in cigarettes is addictive”; (3) that the Tobacco Companies “placed cigarettes on the market that were defective and unreasonably dangerous”; (4) that the Tobacco Companies “concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both”; (5) that the Tobacco Companies “agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment”; (6) that all the Tobacco Companies “sold or supplied cigarettes that were defective”; (7) that all the Tobacco Companies “sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by” the Tobacco Companies; and (8) that all the Tobacco Companies “were negligent.” Id. at 1276-77. These findings are referred to as the “Phase I findings.” Id. at 1254. The issue in this appeal is how the Phase I findings are to be used in the subsequent trials for damages brought by the individual class members.

In the instant case, the trial court advised the jury that the first issue for its consideration was whether Mrs. Douglas was a member of the class. The jury was instructed as follows:

Class members are cigarette smokers who on or before November 21, 1996, suffered from a disease or medical condition legally caused by an addiction to cigarettes — to smoking cigarettes containing nicotine.
An addiction to smoking cigarettes containing nicotine is a legal cause of a disease or medical condition if it directly and in natural and continuous sequence produces or contributes substantially to producing such disease or medical condition so that it can reasonably be said that but for an addiction to cigarettes containing nicotine, such disease or medical condition would not have been suffered.

The trial court also provided the jury with a concurring cause instruction. As to this first issue, the jury found that Mrs. Douglas was a member of the class, and the Tobacco Companies do not challenge that finding on appeal.

The trial court further instructed the jury that if, in fact, it did determine that Mrs. Douglas was a member of the class, then it was to accept the eight Phase I Engle findings as proven fact. As part of that instruction, the trial court' spelled out for the jury each of the eight Phase I findings. The trial court also advised the jury that the Tobacco Companies “have admitted that Charlotte Douglas had chronic obstructive pulmonary disease, COPD, and lung cancer caused by cigarette smoking and that lung cancer caused her death.”

The trial court further instructed:

The second issue for your determination ... is whether smoking cigarettes manufactured and sold by one or more of the defendants was a legal cause of the death of Decedent, Charlotte Douglas. If so, you should also determine as to each defendant whether or not that defendant’s cigarettes were a legal cause of the death of the decedent, Charlotte Douglas.

The trial court then advised that

[t]he smoking of defendants’ cigarettes is a legal cause of loss, injury, or damage to [Mrs. Douglas] if it directly and in natural continuous sequence produce[d] or contributed substantially to producing such loss, injury, or damage so that it can reasonably be said that but for smoking defendants’ cigarettes, the loss, injury, or damage would not have occurred.

The verdict form included the following question: “Was smoking cigarettes manufactured by one or more of the Defendants a legal cause of CHARLOTTE DOUGLAS’ death?” The jury responded affirmatively. The verdict form determined that each of the three named defendant Tobacco Companies manufactured a cigarette that was the legal cause of Mrs. Douglas’ death.

The Tobacco Companies argue on appeal that the trial court erred in giving instructions that misinterpret the intent of the Florida Supreme Court’s Engle III decision. They maintain that the Phase I findings do not relieve Mr. Douglas of the responsibility of proving the elements of the causes of action alleged in his complaint and that the findings did not foreclose the raising of the affirmative defenses to these causes of action. According to the Tobacco Companies, the Phase I findings only preclude the relitigation of the specific issues determined by the Engle jury and should not be read to preclude the litigation of the elements of each of the stated causes of action brought by individual class members in subsequent cases. Specifically, the Tobacco Companies argue that even though many of the issues of negligence and strict liability were determined by the Engle jury, Mr. Douglas still had to prove legal causation. That is, Mr. Douglas had to establish that Mrs. Douglas’ injuries were caused by some defect in the cigarettes or by some negligent act of the Tobacco Companies. The Tobacco Companies also argue that the trial court erred in giving the concurring cause instruction in relation to the question of class membership.

We affirm the trial court’s final judgment with regard to both of these issues but write only on the application of the Phase I findings to subsequent suits brought by class members. These post-Engle III suits are now beginning to appear before the appellate courts; however, this is the first time this court has considered these issues. In doing so, we first note that the Florida Supreme Court characterized the Phase I findings as follows: “The jury considered common issues relating exclusively to the defendants’ conduct and the general health effects of smoking.” Engle III, 945 So.2d at 1256. After determining that claims for damages must be pursued individually rather than by class action, the court concluded that “[individual plaintiffs within the class will be permitted to proceed individually with the findings set forth above given res judicata effect in any subsequent trial between individual class members and the defendants, provided such action is filed within one year of the mandate in this case.” Id. at 1277 (emphasis added). The issue thus becomes what the phrase “res judicata effect” means.

The Caselaw

The Eleventh Circuit’s Brown Decision

We begin our analysis with a review of three similar appeals — two decided by Florida state appellate courts and one by the Eleventh Circuit Court of Appeal. In the federal appellate case, the Eleventh Circuit reviewed an interlocutory order by which the trial court determined that the Phase I “ ‘findings [could] not be given preclusive effect in any proceeding to establish any element of an Engle Plaintiffs claim.’ ” Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1329 (11th Cir.2010) (alteration in original) (quoting Brown v. R.J. Reynolds Tobacco Co., 576 F.Supp.2d 1328, 1348 (M.D.Fla.2008)). The Eleventh Circuit noted that the Florida Supreme Court in Engle III specifically stated that the eight findings of the trial court should be given res judicata effect in subsequent actions brought by class members. Id. at 1331. However, the court recognized that “[t]he term ‘res judicata’ ... can refer specifically to claim preclusion or it can refer generally to the preclusive effect of earlier litigation. When the term has that second meaning, it encompasses claim preclusion and issue preclusion, and it can mean either or both.” Id. at 1331-32 (citation omitted). The Eleventh Circuit then concluded as follows:

The defendants had their day in court on the “common issues” of fact that were decided in Phase I, and later approved by the Florida Supreme Court, but they did not have their day in court on the broader questions involving the causes of action the class asserted, which were left undecided. See Engle III, 945 So.2d at 1263.
Because factual issues and not causes of action were decided in Phase I, the Florida Supreme Court’s direction that the approved findings were to have “res judicata effect” in future trials involving former class members necessarily refers to issue preclusion.

Id. at 1333.

However, the federal court pointed out that the parties disagreed as to what issue preclusion meant, giving the following example:

Question 3 on the verdict form asked the jury: “Did one or more of the Defendant Tobacco Companies place cigarettes on the market that were defective and unreasonably dangerous?” The jury answered “yes[ ]” for every time period for every defendant except Brooke Group, Ltd., Inc. Under the defendants’ view, the only fact that the jury found was that they sold some cigarette that was defective and unreasonably dangerous during the time periods listed on the verdict form. That would mean that the finding may not establish anything more specific; it may not establish, for instance, that any particular type or brand of cigarette sold by a defendant during the relevant time period was defective and unreasonably dangerous. Under the plaintiffs’ broader view[,] the jury’s finding must mean that all cigarettes the defendants sold were defective and unreasonably dangerous because there is nothing to suggest that any type or brand of cigarette is any safer or less dangerous than any other type or brand.

Id. at 1335 (footnote omitted).

The Eleventh Circuit went on to observe that the plaintiffs had not pointed to anything in the transcript of the Engle trial that showed that the jury made such specific findings. Id. Accordingly, the court vacated the federal trial court’s determination that the Phase I findings could not be used to establish any element of the complaint and advised the trial court that the findings were entitled to res judicata effect as to the factual issues that were litigated and specifically resolved in the record. Id. The Eleventh Circuit then instructed the trial court on remand to determine what particular issues were litigated and resolved in Phase I and then to preclude the defendant tobacco companies from relit-igating those issues. Id. at 1336. However, the Eleventh Circuit concluded that any issue not specifically designated by the record must be proven by the plaintiffs in the case before the trial court. Id.

The First District’s Martin Opinion

In R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), the First District reviewed a final judgment entered in favor of an Engle class member that was based on treating the eight Phase I findings as res judicata in a manner similar to the proceedings in the instant case. In Martin, R.J. Reynolds argued that even with the application of the class findings, the class member

was required to prove [that] Lucky Strike brand cigarettes contained a specific defect rendering the brand unreasonably dangerous; [that R.J. Reynolds] violated a duty of care it owed to [the class member]; [that R.J. Reynolds] concealed particular information which, had it been disclosed, would have led [the class member] to avoid contracting lung cancer; and [that R.J. Reynolds] was part of a conspiracy to conceal the specified information.

Id. at 1066.

R.J. Reynolds relied on the Eleventh Circuit’s Brown language that limited the res judicata effect to that of issue preclusion rather than claim preclusion because only factual issues were decided by the jury in Engle. Id. at 1067. The Martin court reacted to Brown as follows:

While we generally agree with the Eleventh Circuit’s analysis of issue preclusion versus claim preclusion, we find it unnecessary to distinguish between the two or to define what the supreme court meant by “res judicata” to conclude the factual determinations made by the Phase I jury cannot be relitigated by [R.J. Reynolds] and the other Engle defendants. More importantly, we do not agree every Engle plaintiff must trot out the class action trial transcript to prove applicability of the Phase I findings. Such a requirement undercuts the supreme court’s ruling. The Phase I jury determined “common issues relating exclusively to the defendants’ conduct ...” but not “whether any class members relied on Tobacco’s misrepresentations or were injured by Tobacco’s conduct.” Engle, 945 So.2d at 1256 (emphasis added). The common issues, which the jury decided in favor of the class, were the “conduct” elements of the claims asserted by the class, and not simply, as characterized by the Eleventh Circuit, a collection of facts relevant to those elements.

Id.

The First District concluded that the Phase I findings on these common issues sufficiently proved the elements of the several causes of action except for the requirement of a causal connection for each cause of action, detrimental reliance for the fraudulent concealment claim, and proof of resulting damages for each claim. Id. at 1068. The court cited the Final Judgment and Omnibus Order entered by the Engle trial court as conclusive on each of the elements of the causes of action. Id. Having determined that the Engle jury made factual findings on the elements, the First District then concluded that the Martin trial court properly relied on the Phase I findings and that there was no need for the plaintiff class member to “independently prove up those elements or demonstrate the relevance of the findings to their lawsuits, assuming they assert the same claims raised in the class action.” Id. at 1069.

The Fourth District’s Brown Decision

Subsequently, in R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011), the Fourth District reviewed the Phase I findings in light of both the Eleventh Circuit’s opinion in Brown and the First District’s Martin decision. The Fourth District read the Martin decision to suggest that the Phase I findings had established the conduct elements of the asserted claims and that Mrs. Martin had proven legal causation on her negligence and strict liability claims. However, the Fourth District noted that the First District in Martin “approve[d] the use of the class membership instruction for the dual purpose of satisfying the element of legal causation with respect to addiction and legal causation on the underlying strict liability and negligence claims.” 70 So.3d at 714.

The Fourth District then addressed the Eleventh Circuit’s conclusion in its Brown case that the Florida Supreme Court’s reference to res judicata in Engle III was limited to issue preclusion. The Fourth District concluded that although “the Martin court did not go far enough[,] the [Eleventh Circuit] went too far.” Id. at 715. The Fourth District “[b]y and large” agreed with the Eleventh Circuit that the Florida Supreme Court’s reference to res judicata in Engle III meant issue preclusion but not claim preclusion. Id.

However, we do not go as far as [the Eleventh Circuit in] Brown to require trial courts to evaluate whether any elements of post-Anyfe plaintiffs’ claims are established by the Engle findings. We are constrained by the Florida Supreme Court’s decision in Engle III, which held the conduct elements of certain claims were established. In Phase I of Engle, “common issues” relating to “the defendants’ conduct and the general health effects of smoking” were litigated, not the entire causes of action. Therefore, we conclude, as Martin did, that individual post-Engle plaintiffs need not prove the conduct elements in negligence and strict liability claims, as asserted here.

Id. (citations omitted).

The Fourth District went on to state that a class member must prove more than class membership and damages to prevail. The Phase I “findings preclusively establish the conduct elements of the strict liability and negligence claims.... Nevertheless, the remaining elements of the underlying claims, i.e.[,] legal causation and damages, must be proven in the second phase of trial.” Id. Additionally, the court noted that the legal causation for negligence and strict liability is distinguishable from the causation that proves addiction resulting in class membership. To satisfy the “burden of proving legal causation in a strict liability or negligence claim” post-Engle III plaintiffs must show “(i) [that] the defendant’s failure to exercise reasonable care was a legal cause of decedent’s death[] and (ii) [that] the defective and unreasonably dangerous cigarettes were a legal cause of decedent’s death.” Id. The Fourth District disagreed with the First District’s opinion in Martin on this point because there were no specific instructions on legal causation on the negligence and strict liability claims given to the Martin jury. The Fourth District concluded that by allowing the legal causation instruction used on the issue of addiction to justify a finding of legal causation on the strict liability and negligence claims, the Martin court read the Florida Supreme Court’s res judicata language in Engle III to be that of claim preclusion instead of issue preclusion. The Fourth District rejected such a conclusion. Id. at 716.

In analyzing the facts of its Brown case, the Fourth District looked at the individual claims as they related to the Phase I findings. In regard to strict liability, the court concluded that the Phase I findings determined that R.J. Reynolds placed cigarettes on the market that were defective and unreasonably dangerous and that this established the conduct portion of a strict liability claim in post-Engle III actions. Id. at 717. The court noted that the cigarettes smoked by the plaintiff were the same brand manufactured by R.J. Reynolds. Id. The court rejected R.J. Reynolds’ argument that the plaintiff should be required to point out the specific defect existing in specific cigarettes before being entitled to the benefit of the Phase I finding on this issue. Id. The court noted, however, that for the plaintiff to prevail on the strict liability theory, instructions on the remaining elements of legal causation and damages must be given and the jury must make the necessary findings. Id. The court approved the trial court’s bifurcating the proceeding to allow the jury to first consider class membership and then subsequently consider the causes of action based on the application of the Phase I findings. Id. An instruction on causation was given to the jury during the first proceedings, and the jury found that the plaintiff was a member of the class. Id. Because a second instruction was given and the jury found for the plaintiff on legal causation during the second proceeding, the Fourth District affirmed the award on the theory of strict liability. Id.

Likewise on the negligence claim, the Fourth District found that the Phase I findings established the elements of duty to exercise reasonable care and a breach of that duty by R.J. Reynolds. Id. at 718. The court stated that post-Engle III plaintiffs are not required to litigate these issues again but that trial courts must instruct juries on the issues of legal causation, comparative fault, and damages and allow juries to make findings as to each issue. Id. Again, because the trial court in Brown properly instructed the jury and the jury made the necessary findings during the second proceeding, the Fourth District affirmed the award on the negligence theory. Id.

Analysis

With these three cases in mind, we now turn our attention to the facts and record before us. We agree with the Fourth District’s conclusions that the Florida Supreme Court’s language in Engle III clearly states that the jury findings in that case are binding on future claims as to the issues of the Tobacco Companies’ conduct. The supreme court described those findings as “common issues relating exclusively to the defendants’ conduct and the general health effects of smoking.” Engle III, 945 So.2d at 1256. The supreme court then concluded that “[c]lass members can choose to initiate individual damages actions and [that] the Phase I common core findings ... will have res judicata effect in those trials.” Id. at 1269.

We also agree with the Fourth District in concluding that to require post-Engle III plaintiffs to relitigate issues related to the Tobacco Companies’ conduct and the general health effects of smoking would undercut the intent of the Florida Supreme Court’s Engle III decision. As such, like the Fourth District, we reject the Tobacco Companies’ argument that post-Engle III plaintiffs should be required to prove specific defects existing in specific cigarettes.

We further note that we dó not read the Fourth District’s opinion in Bronm to require a bifurcated trial court proceeding but rather only to require that the jury be instructed on legal causation separately for the consideration of class membership and then again for consideration of the cause of action.

Because the Engle Phase I findings are accepted as to the conduct of the Tobacco Companies and the health effects of smoking, to prevail on the theory of strict liability in the instant case, Mr. Douglas needed only to prove legal causation and damages on his claims. The verdict form clearly posed the question of legal causation to the jury, and the jury made a finding that Mrs. Douglas’ diseases were legally caused by her smoking cigarettes manufactured by the Tobacco Companies. That coupled with the Phase I finding that the cigarettes were “defective and unreasonably dangerous” amounts to strict liability. We therefore affirm the final judgment based on a theory of strict liability.

Finally, the Tobacco Companies also argue that the Eleventh Circuit in its Brown case concluded that to allow res judicata to apply to the Phase I findings would be a violation of their due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. This argument was rejected by both the First District in Martin and the Fourth District in Brown. Furthermore, this position more recently has been rejected by the U.S. District Court for the Middle District of Florida in Waggoner v. R.J. Reynolds Tobacco Co., No. 3:09-cv-10367-J-37JBT, — F.Supp.2d -, 2011 WL 6371882 (M.D.Fla. Dec. 20, 2011). We too reject this argument.

We do agree, however, that the issue is one that will be applicable to the many individual class member cases now being considered by the trial courts of this state. Accordingly, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) and article 5, section 3 of the Florida Constitution, we certify the following question as being one of great public importance:

DOES ACCEPTING AS RES JUDICA-TA THE EIGHT PHASE I FINDINGS APPROVED IN ENGLE V LIGGETT GROUP, INC., 945 So.2d 1246 (Fla. 2006), VIOLATE THE TOBACCO COMPANIES’ DUE PROCESS RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION?

Affirmed; question certified.

WHATLEY, J., Concurs.

ALTENBERND, J. Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in the court’s opinion. I write only to note that the parties in this case, in addition to submitting excellent briefing, provided copies of the several sets of jury instructions used in the other cases cited in the court’s opinion. Given the number of pending cases that are affected by Engle III, it might be helpful if the supreme court approved a standard set of jury instructions for use in Engle cases.

      . The original complaint was filed by Mr. and Mrs. Douglas; however, Mrs. Douglas died during the pending litigation, and the lawsuit was amended to become a wrongful death suit.

      . The caselaw refers to the Florida Supreme Court's Engle decision as Engle III, Engle I being the Third District’s opinion affirming the trial court’s order certifying the class, see R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 40 (Fla. 3d DCA 1996), and Engle II being the Third District's opinion reversing the ultimate final judgment in that class action, see

        Liggett Group, Inc. v. Engle, 853 So.2d 434 (Fla. 3d DCA 2003).

      . The trial court originally certified the class as "[a]ll United States citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Engle I, 672 So.2d at 40. However, in an interlocutory review of the order certifying the class, the Third District limited the class to Florida citizens and residents. Id. at 42.

      . The named defendants in the Engle cases were Liggett Group, Inc.; Brook Group Ltd.; Philip Morris, Inc.; Council for Tobacco Research-USA, Inc.; Tobacco Institute, Inc.; Lorillard Tobacco Co.; Lorillard, Inc.; Brown & Williamson Tobacco Corp.; American Tobacco Co.; and R.J. Reynolds Tobacco Co. As such, the three named defendants in the instant case were all parties to the Florida Supreme Court’s decision in Engle III.

      .The Engle jury’s finding included "aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, [COPD], coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocar[c]inoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer.” Engle III, 945 So.2d at 1277.

      . Specifically, the trial court instructed the jury as follows: "An addiction to cigarettes containing nicotine may be a legal cause of a disease or a medical condition even though it operates in combination with the act of another or some natural cause or some other cause if such other cause occurs at the same time as an addiction to cigarettes, and if such an addiction to cigarettes contributes substantially to producing a disease or medical condition.”

      . This case is unrelated to the Eleventh Circuit’s Brown decision discussed herein.

      . We note that the complaint alleged a count for negligence and that the trial court instructed the jury on negligence. However, the verdict form did not ask the jury if it was the Tobacco Companies' failure to exercise reasonable care that was the legal cause of Mrs. Douglas injury. As such, we must agree with the Tobacco Companies' argument that the jury did not make a finding of legal causation as related to the theory of negligence. But our affirming the final judgment on a theory of strict liability renders this argument moot.


text:
    Ross A. CLEVENS, Appellant, v. OMNI HEALTHCARE, INC. and OMNI Healthcare, P.A., et al., Appellee.
    No. 5D10-1695.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2012.
    David C. Willis and Darren K. McCartney of Rumberger, Kirk & Caldwell, Orlando, for Appellant.
    William H. Cantwell, II, of William H. Cantwell, II, P.A., Cocoa, for Appellee.
   COHEN, J.

Ross A. elevens (“elevens”) appeals from a nonfinal order entered pursuant to his settlement agreement with OMNI Healthcare, Inc. (“OMNI”). We dismiss the appeal for lack of jurisdiction.

This appeal concerns the parties’ attempt to settle issues relating to a replevin action and dissolution of a business partnership. They memorialized the results of their meeting in a signed, handwritten document called “Deal Points Between OMNI Healthcare and Dr. elevens” (the “Deal Points”). The thirteen-paragraph document includes issues, most of which were outside the pleadings, that the parties allegedly settled and had yet to resolve. The agreement directed elevens to pay certain moneys to OMNI and required the parties to reconvene within one week to settle the remaining items.

When the parties failed to agree to the outstanding issues, OMNI filed a motion to compel elevens to abide by the Deal Points. A hearing resulted in the issuance of an order that found the Deal Points binding as to certain paragraphs and nonbinding as to the remaining items. The order directed the parties to reconvene settlement negotiations within a week.

Upon review, we conclude the order is a nonappealable, nonfinal order, elevens argues this Court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(B), which provides that appeals of nonfinal orders are limited to those that “grant, continue, modify, deny, or dissolve injunctions,” as well as those that “refuse to modify or dissolve injunctions.” However, “[a]n injunction is an equitable remedy, designed to protect property or other rights from irreparable injury by prohibiting or commanding certain acts.” 42 Am. Jur.2d Injunctions § 1 (2012) (footnotes omitted); see also Judicial Watch, Inc. v. Carroll, 776 So.2d 300, 302 (Fla. 4th DCA 2000) (explaining orders in nature of an injunction are appealable because they have practical effect of granting or denying an injunction; have serious, possibly irreparable consequences; and can be effectively challenged only by immediate appeal). The order here does not meet these requirements. It declares that certain provisions of the settlement agreement are binding and enforceable, nothing more. The order does direct the parties to meet to negotiate further, which is more akin to a case management order regulating the conduct of the parties before the court, than an injunction. See Lamothe v. Sellars, 695 So.2d 1259, 1260 (Fla. 4th DCA 1997).

DISMISSED.

PALMER and MONACO, JJ., concur.

      . Although this Court’s motions panel explicitly allowed the case to proceed as an appeal from a nonfinal order in the nature of an injunction under Florida Rule of Appellate Procedure 9.130(a)(3)(B), a motion panel’s decision in the form of an unpublished order may be reviewed because it is an interlocutory ruling that may be revisited by the merits panel. Hialeah Hotel, Inc. v. Woods, 778 So.2d 314, 315 (Fla. 3d DCA 2000).


author: WOLF, J.

text:
    ENVIRONMENTAL TURF, INC., a Florida corporation, Appellant, v. UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Institute of Food & Agricultural Sciences, an agency of the State of Florida, and Florida Foundation Seed Producers, Inc., a not-for-profit corporation chartered by the State of Florida, Appellees.
    No. 1D11-2121.
    District Court of Appeal of Florida, First District.
    April 2, 2012.
    Hank B. Campbell of Valenti Campbell Trohn Tamayo & Aranda, P.A., Lakeland; Jonathan W. Stidham of Stidham & Stid-ham, P.A., Bartow, for Appellant.
    John A. DeVault, III and Courtney K. Grimm of Bedell, Dittmar, DeVault, Pil-lans & Coxe, P.A., Jacksonville, for Appel-lees.
   WOLF, J.

Appellant challenges the trial court’s denial of its request for disclosure of public records. Appellees assert, here and below, that the requested documents were exempt from disclosure because they were either (1) created and maintained by a direct-support organization (DSO), citing section 1004.28(5), Florida Statutes (2006); (2) compiled during university research, citing section 1004.22(2), Florida Statutes (2006); or (3) prepared in anticipation of litigation, citing section 119.071(l)(d)(l), Florida Statutes (2006).

The trial court denied relief based on these three asserted exemptions without inspecting the records at issue. We affirm the trial court’s ruling that the documents prepared by Florida Foundation Seed Producers, Inc. are exempt from disclosure because these documents were prepared and disseminated by a DSO. Section 1004.28(5) exempts all documents that are created by a DSO except for listed exceptions which are not present in this case. See Palm Beach Cmty. Coll. Found., Inc. v. WFTV, Inc., 611 So.2d 588 (Fla. 4th DCA 1993).

However, as to the remaining documents, an in-camera inspection is “generally the only way for a trial court to determine whether or not a claim of exemption applies.” Garrison v. Bailey, 4 So.3d 683, 684 (Fla. 1st DCA 2009) (citing Weeks v. Golden, 764 So.2d 633, 635 (Fla. 1st DCA 2000)); see also Lopez v. Singletary, 634 So.2d 1054, 1058 (Fla.1993) (remarking that “it is for a judge to determine, in an in camera inspection, whether particular documents must be disclosed”).

Accordingly, we REVERSE and REMAND for the trial court to conduct an in-camera inspection of the remaining records to determine if they are exempt from disclosure under the alleged exemptions to the Public Records Act.

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


author: EMAS, J.

text:
    N.M., the mother, Petitioner, v. The DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 3D12-373.
    District Court of Appeal of Florida, Third District.
    April 2, 2012.
    llene Herscher, Coral Gables, for petitioner.
    Karla Perkins, Appellate Counsel for the Department of Children and Families; Hillary Kambour, Appellate Counsel for the Guardian ad Litem Program.
    Before RAMIREZ and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ON CONFESSION OF ERROR

EMAS, J.

On confession of error by the Department of Children and Families, and our independent review, we agree that the Department failed to establish that continued visitation with the mother, N.M., would endanger the minor child. The petition for writ of certiorari is granted and this court quashes the lower court’s no-contact order dated January 26, 2012, and remands for the lower court to enter an appropriate visitation order.


author: LaROSE, Judge.

text:
    James IMSEIS, Appellant, v. Baktash ZAHER, Appellee.
    No. 2D10-5990.
    District Court of Appeal of Florida, Second District.
    April 4, 2012.
    Walter E. Foster, III, of Walter E. Foster, III, P.A., Daytona Beach, for Appellant.
    William N. Gambert, Daytona Beach, for Appellee.
   LaROSE, Judge.

James Imseis appeals a final judgment denying him relief on causes of action for cancellation of a deed, ejectment, and equitable lien. He also challenges the trial court’s reservation of jurisdiction to determine entitlement to and an award of attorneys’ fees; Mr. Imseis argues that no one pleaded for such relief. On this latter point, we agree and Mr. Zaher concedes error.

A claim for attorneys’ fees must be pleaded, whether based on contract or statute. BMR Funding, LLC v. DDR Corp., 67 So.3d 1137, 1140 (Fla. 2d DCA 2011) (citing Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991)). Additionally, a timely motion is required. Fla. R. Civ. P. 1.525; Barco v. Sch. Bd. of Pinellas County, 975 So.2d 1116, 1124 n. 4 (Fla.2008).

We reverse that portion of the final judgment reserving jurisdiction to determine and award attorneys’ fees. In all other respects, we affirm the final judgment.

Affirmed in part; reversed in part.

CASANUEVA and MORRIS, JJ., Concur.


text:
    DEPARTMENT OF REVENUE o/b/o Lauren E. GRAY, Appellant, v. Starling A. HUNT, Appellee.
    No. 1D11-2763.
    District Court of Appeal of Florida, First District.
    April 4, 2012.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

In light of this Court’s decision in Department of Revenue ex rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011), the final administrative support order being appealed herein is reversed, and the matter is remanded to the Division of Administrative Hearings for further proceedings consistent with Daly.

REVERSED and REMANDED for further proceedings.

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