author: CASANUEVA, Judge.

text:
    Robert D. LAMORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2360.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.

      Robert D. Lamore, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Robert D. Lamore appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.800(a), in which he claimed that he was illegally sentenced after violating the probation imposed following completion of the Department of Corrections (DOC) basic training program (boot camp) as a youthful offender. We reverse and remand for further proceedings.

On February 28, 2006, Lamore pleaded no contest to several felonies and misdemeanors in seven different cases. The trial court sentenced him to five years’ probation, a condition of which was a jail term of 864 days. Lamore committed the offenses between December 2004 and July 2005. None of the written judgments and sentences reflect that Lamore was treated as a youthful offender. In 2007, the court found Lamore guilty of a violation of probation and sentenced him to seven years’ imprisonment in case number 05-1358CF, to run concurrent with the five-year prison terms in each of his other cases. Again, the written judgments and sentences do not reflect treatment as a youthful offender.

On September 15, 2008, the DOC recommended that Lamore serve his sentence as a youthful offender in boot camp as provided for by section 958.045, Florida Statutes (2005). The trial court approved Lamore’s placement in this program, and the DOC later notified the trial court that Lamore was expected to successfully complete boot camp on September 8, 2009, after which he would need to be placed on probation. Less than two months after his completion of boot camp, Lamore violated his probationary curfew. On April 13, 2010, the trial court resentenced him to seven years’ imprisonment in case number 05-1358CF, to run concurrent with the five-year terms in each of his other cases.

In his motion, Lamore claimed that at the time of his last violation of probation, he was eligible to be sentenced only to a maximum term of 364 days in jail. In support, he claimed that the version of the youthful offender statute in effect at the time of his original offenses limited the court — upon finding a defendant in violation of post-boot camp probation — to imposing “any sentence that it might have originally imposed as a condition of probation.” § 958.045(5)(c), Fla. Stat. (2005) (emphasis added). He further asserted that pursuant to section 958.04(2)(b), Florida Statutes (2005), this meant that his sentence “may not exceed 364 days.” Recognizing that an amendment to section 958.045(5)(c), effective July 1, 2006, authorized a court to “impose any sentence that it might have originally imposed,” thereby expanding the permissible sentence, La-more argued that the offenses for which he was sentenced were committed prior to the effective date of the amendment, thus the earlier version of the statute must apply. One court has held that “[t]o apply the 2006 amendment to those [prior] offenses would violate the constitutional prohibition against ex post facto laws.” Morrison v. State, 978 So.2d 284, 285 (Fla. 4th DCA 2008).

In response to this court’s order to show cause why the postconviction court’s order should not be reversed, the State argued that the amended version of the statute should apply to Lamore’s case. Although Lamore’s unique sentencing timeline — particularly the lengthy delay between the commission of his crimes and his treatment as a youthful offender — provides at least some basis for an argument that he should be subject to the statutory scheme in effect at the time that he entered boot camp, this court’s recent decision in Miller v. State, 77 So.3d 888 (Fla. 2d DCA 2012), quiets any such debate. In Miller, the defendant was sentenced as a youthful offender in 2007 for offenses that occurred in 2004 and 2005. Id. at 888-89. The defendant claimed to have completed boot camp and was subsequently released only to violate probation with new offenses shortly thereafter. On August 21, 2009, the court sentenced him to ten years’ imprisonment on the violation of probation. The defendant then filed a rule 3.800(a) motion, much the same as Lamore’s, which the postconviction court denied. Id. at 889. Ultimately, this court held that the post-conviction court, in concluding that Miller could be sentenced to ten years, “incorrectly relied upon the version of a statutory provision that was applicable at the time [the defendant] was originally sentenced as a youthful offender, rather than the version of the provision in effect at the time [the defendant] committed his offenses.” Id.

The State addressed Miller in its response and pointed out that, unlike La-more, Miller was designated a youthful offender upon his initial sentencing. The State argued that Lamore’s situation is more analogous to that of Adderly v. State, 958 So.2d 997 (Fla. 5th DCA 2007). In Adderly, the defendant, a minor, was sentenced on January 25, 2001, as an adult. Id. at 998. Only following a July 11, 2006, letter from the DOC recommending the defendant for boot camp was he designated as a youthful offender for the first time. Upon successfully completing boot camp on January 9, 2007, the defendant filed a motion for resentencing seeking release onto probation. Id. After holding that the defendant was entitled to this relief as a result of his successful completion of boot camp, the court made the following ambiguous statement:

We note that section 958.045(5)(c), Florida Statutes, was amended effective July 1, 2006, and now provides that a youthful offender who violates the probationary term imposed following successful completion of the boot camp program may be sentenced, upon revocation of the probation, to any sentence that could have originally been imposed on the charge. Prior to this statutory change, a defendant who violated probation after completing boot camp could only be sentenced to 364 days in jail.

Id. (citation omitted). The State maintains that the Fifth District’s treatment of a similarly situated defendant in Adderly has established that the post-amendment statute is applicable to both Adderly and Lamore. While the State is correct in arguing that the defendants in question share analogous sentencing timelines, the issue of which version of the statute to apply to these defendants is simply not explicitly addressed or answered in Adderly.

Despite the difference between Lamore’s case and Miller as noted by the State, the holding in Miller clearly and unambiguously addresses Lamore’s claim. Miller, 77 So.3d at 889, recognizes the principle that defendants are to be sentenced in accordance with the statutes in effect at the time they committed their offenses. See State v. Battle, 661 So.2d 38, 39 (Fla. 2d DCA 1995) (“It is well established that an amendment to a criminal statute does not affect the prosecution of, or the punishment for, a crime committed before the amendment.”); see also art. X, § 9, Fla. Const. (“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”). Barring a stipulation by Lamore to the contrary, the seven cases for which Lamore successfully completed youthful offender boot camp-all of which arose from offenses occurring between December 2004 and July 2005-are governed by the pre-July 1, 2006, version of section 958.045(5)(c). Specifically, “[u]n-der the youthful offender provisions in effect in 2004 and 2005, a violation of a probationary sentence that was imposed as a consequence of an offender’s satisfactory completion of a DOC-run boot camp could result in a sentence of no longer than 364 days’ incarceration.in specified facilities.” Miller, 77 So.3d at 890.

The record shows that the court approved boot camp in all seven of Lamore’s cases. We reverse the postconviction court’s denial of Lamore’s motion and remand for the court to either attach records clearly indicating that Lamore stipulated to treatment under the post-amendment statute or resentence Lamore in accordance with the pre-amendment statute.

Reversed and remanded.

WHATLEY and KHOUZAM, JJ. Concur.

      . If, for instance, Lamore's signed acceptance of the terms of
      youthful offender boot camp included discussion of the applicable probationary guidelines or of the governing statutes, the court might construe this as a stipulation. However, the records provided contain no such details.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Mary Elizabeth FEATHERSTON, Appellant, v. Mark Ashley FEATHERSTON, Appellee.
    No. 2D10-5214.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.

      Joseph C. Hood, Tampa, for Appellant.
    Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, Tampa, for Appellee.
   ALTENBERND, Judge.

Mary Elizabeth Featherston appeals the final judgment of dissolution of her marriage to Mark Ashley Featherston. We affirm the judgment with three significant exceptions. The trial court abused its discretion in failing to award the Wife retroactive alimony. The trial court erred in failing to list and distribute a maritime pension and two motor vehicles as part of the equitable distribution. Finally, the parties own three rental properties in which they have little or no equity. The properties are to be sold under the terms of the final judgment. Although we affirm the order to sell these properties, we conclude that the trial court’s requirements as to the future distribution of the proceeds from these sales are incomplete and will require reconsideration on remand.

I. RETROACTIVE ALIMONY

This couple married in 1989 and was blessed with triplets in 1992. After the birth of the triplets, the Wife primarily worked as a homemaker raising the children and assisting with the management of several rental properties owned by the couple. She did not work outside the home until near the end of the marriage. The Wife has been working in a retail store earning about $20,000 per year, and the Husband is a sea captain earning about $70,000 per year. Both the Husband and the Wife are healthy and can be expected to work for more than a decade.

The Wife filed for divorce in February 2009. The trial court entered the final judgment of dissolution in August 2010. The Wife sought temporary support during the proceeding, but no order was ever entered. The Husband provided irregular child support, but does not appear to have paid any temporary support to the Wife. In the final judgment, the trial court awarded the Wife $1250 per month in permanent periodic alimony. Neither party challenges the permanent periodic alimony award. The Wife, however, argues that the trial court either erred as a matter of law or abused its discretion in denying her an award of retroactive alimony as well as an award of retroactive child support.

The Wife inherited money when her parents died. She kept her inheritance separate from the marital accounts, and it is undisputed that the inheritance is nonmar-ital. This nonmarital asset was apparently worth approximately $400,000 at an earlier time, but was valued at approximately $200,000 at the time of the final hearing. The Wife testified that she supported herself and the children by withdrawing funds from this account during the eighteen months of the dissolution proceeding.

The trial court denied both retroactive child support and retroactive alimony. The matters related to the denial of retroactive child support are complex, and on this record we cannot say that the trial court abused its discretion with respect to the denial of retroactive child support.

As to the denial of retroactive alimony, however, we conclude that the trial court abused its discretion. The trial court found “that the Wife did not prove in evidence or testimony that there was retroactive need or ability to pay her temporary support during the pending litigation,” and it denied the Wife an award of retroactive alimony based upon that finding. As to arrearage of temporary support, the trial court stated: “The Wife made much of the fact that she had to use non-marital resources to support herself during the separation. There is no indication from the law that there is some prohibition against this.” Thus, the trial court was clearly influenced by the fact that the Wife had a nonmarital liquid asset available to her and that she had used it to support herself during the pendency of the litigation. But a spouse should not necessarily have to consume a separate asset to support himself or herself during the pen-dency of a dissolution of marriage proceeding to maintain the standard of living enjoyed by the husband and wife during the marriage. See Wolfson v. Wolfson, 455 So.2d 577, 579 (Fla. 4th DCA 1984).

Under the circumstances here, the trial court abused its discretion in denying the Wife any measure of temporary support simply because she had a nonmarital asset available to her. The evidence presented at the final hearing established that the Husband’s ability to contribute to his Wife’s support during the pendency of the divorce was similar to his ability at the time of the trial. It also established that the Wife’s need for support to maintain the marital standard of living during the pen-dency of the divorce was at least as great as it was at the time of the trial. On that evidence the trial court found that an award of permanent alimony in the amount of $1250 was appropriate. There is no question that the Wife had need for temporary support and that the Husband had the ability to pay.

Given that the permanent alimony of $1250 per month is well within the discretion of the trial court and the circumstances during the pendency of the divorce were similar to those at the time of the trial, we require the trial court to enter an award of retroactive alimony from the filing date of the petition based on $1250 per month. The Wife is entitled to prejudgment interest on this award. See Gremel v. Gremel, 45 So.3d 978, 980 (Fla. 2d DCA 2010).

II. EQUITABLE DISTRIBUTION

The attorneys who tried this case are not the attorneys who are handling this appeal. At trial, the attorneys for both parties tended to present evidence and issues in a manner that did not facilitate an easy decision by the trial court. For reasons that we do not need to explain in detail, the parties introduced evidence about a 2007 Chevrolet Silverado truck, a 2002 Saturn automobile, and a maritime pension, but the trial court did not value and distribute these assets in the final judgment. The two vehicles probably have a value less than $20,000 combined, but the pension is a significant asset of this marriage. On remand, the trial court shall value and distribute these assets and adjust the overall equitable distribution as needed. These changes shall not affect the award of alimony.

Finally, the couple owned a marital home and three rental properties. They moved from the marital home and it has been sold. The distribution of assets from that sale appears to have been resolved adequately. The final judgment orders that the three rental properties be placed on the market and sold. The final judgment treats each rental property separately. Separate treatment may be possible, but the three properties present at least two complexities.

First, one of the properties is clearly worth less than the outstanding balance on the mortgage. When this property sells, the parties are likely to be in a position in which they owe money at the closing. A second property will be, at best, a breakeven proposition. The funds from the third sale may be sufficient to offset any losses in the other two sales. This stark reality is not addressed in the final judgment.

Second, the Husband unilaterally paid a tenant in one of the properties to move out so that he could live rent free in one of the units in that particular property, a duplex. He is apparently serving as property manager for all three properties. The judgment does not appear to give credit to the Wife for half of the rent otherwise payable on the unit occupied by the Husband, and it does not give credit to the Husband for his services as property manager. Although the final judgment instructs the parties to make an appropriate “Kelly credit” with respect to each of these properties, we are concerned that it leaves unresolved too many issues about which these parties seem all too willing to fight.

This court encouraged the parties at oral argument to resolve these issues by stipulation. They were unable to do so. Hopefully, this opinion provides them with an outline that will allow them to reach an appropriate agreement on the relatively straightforward issues surrounding these three properties. If not, on remand, the trial court may conduct an additional hearing at which evidence may be received if necessary to resolve the equitable distribution issues addressed in this opinion.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and LaROSE, JJ., Concur.

      . Kelly v. Kelly, 583 So.2d 667 (Fla.1991).


author: SILBERMAN, Chief Judge.

text:
    Guillaume ALINAT, Appellant, v. Caitlin CURTIS, Appellee.
    No. 2D11-6062.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.

      Lorena L. Keily, Tampa, for Appellant.
    Gary E. Williams and Matthew W. Wilson of The Law Firm for Family Law, Clearwater, for Appellee.
   SILBERMAN, Chief Judge.

In this postdissolution proceeding, Guill-aume Alinat (the Former Husband) appeals a nonfinal order that permits Caitlin Curtis (the Former Wife) to temporarily relocate with the parties’ two children to Australia for a period of three years. The Former Husband raises five issues on appeal, and we affirm on all but one. Because the trial court entered a “temporary” order of three years’ duration, we reverse on that issue and remand for a final hearing.

The parties’ marriage was dissolved in October 2010. About one year later, the Former Wife filed her supplemental petition for relocation and a motion for temporary order granting relocation of the parties’ eight-year-old son and four-year-old daughter. The request to relocate arose because the Former Wife was laid off from her job with the Florida Fish and Wildlife Conservation Commission due to budget reductions. The Former Wife alleged that her professional opportunities were limited because she is in a specialized field of biology, evolutionary genetics. She alleged that she had been diligently seeking employment in Florida and in the United States and had been unable to secure a position. She accepted a position in her field at Griffith University in Australia for a three-year term.

The Former Wife alleged that the Former Husband’s schedule would permit him to travel to Australia because he “has a growing reputation as a high profile chef complete with international travel and books [sic] tours.” The Former Husband filed an objection to the relocation, contending that it would severely harm his relationship with the children. He further alleged that neither party had the financial resources to afford travel to and from Australia that would be sufficient for him to foster a continuing meaningful relationship with his children.

The trial court conducted a hearing on the motion for temporary order granting relocation, but no court reporter was present; thus, our record contains no transcript of the hearing. The court entered an order on November 20, 2011, granting temporary relocation. The order states that it shall be in effect for thirty-six months and that a permanent hearing would be held at the end of the thirty-six months. The court ordered that before the expiration of the thirty-six months “the Mother must make a good faith effort to find employment in the United States, preferably Florida.” The court reserved jurisdiction over the parties and .the subject matter regarding enforcement or modification of the order. The Former Husband timely appealed the order.

The Former Husband contends that the temporary order of three years’ duration was erroneous as a matter of law and that the error was apparent on the face of the order. See Tillotson v. Tillotson, 32 So.3d 191, 191-92 (Fla. 2d DCA 2010) (determining that when there is no transcript of the relocation hearing so that the appellate court is unable to determine if competent, substantial evidence supports the trial court’s findings, the order must be upheld unless it is erroneous as a matter of law). We agree with the Former Husband that section 61.13001, Florida Statutes (2011), does not contemplate a “temporary” relocation order of three years’ duration with the resulting substantial delay in holding a final hearing and rendering a final order. We note that the Former Wife did not seek a deferral of the final hearing on relocation in her motion for temporary order granting relocation. Rather, in seeking the temporary order the Former Wife asserted that she could not wait for the final hearing because it would be in the children’s best interest to move to Brisbane, Australia, during their winter break from school before the Former Wife began her new job in January.

Section 61.13001(6)(b) allows a trial court to grant a temporary relocation order “pending final hearing.” To grant a temporary relocation the trial court must find

[f]rom an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.

§ 61.13001(6)(b)(2) (emphasis added). The statute provides for priority scheduling for a hearing or trial and requires a hearing on a motion for temporary relocation to occur, absent good cause, no later than thirty days after the motion is filed. § 61.13001(10). “If a notice to set the matter for a nonjury trial is filed, absent good cause, the nonjury trial must occur no later than 90 days after the notice is filed.” Id.

In fact, the Former Wife recognizes that the temporary order of three years’ duration is “intriguing” and states that if the Former Husband files a notice to set the matter for nonjury trial and is denied that statutory right to a final hearing, the Former Wife would concede error. However, the order states that it “shall be in effect for a period of 36 months, the life of the Mother’s employment contract” and that “[a] permanent hearing will be held at the expiration of the 36-month period.”

The trial court erred as a matter of law in requiring the temporary order to stay in effect for three years when section 61.13001 provides that temporary orders are preliminary short-term orders and that final hearing occur within ninety days of a notice of nonjury trial. See § 61.13001(6)(b), (10). The parties have found no case with a similar long-term temporary order, but analogous cases show that the trial court must make a timely, final determination based on the present facts.

In Arthur v. Arthur, 54 So.3d 454, 455 (Fla.2010), the Florida Supreme Court addressed section 61.13001 in a situation where the trial court had delayed permanent relocation of a sixteen-month-old child until the child turned three years old. There, the supreme court determined that “the trial court’s prospective best interest determination was erroneous.” Id. at 459. The court explained as follows:

[W]e conclude that a best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence. In this case, the trial court authorized the relocation based in part on its conclusion that relocation would be in the best interests of the child twenty months from the date of the hearing. Such a “prospective-based” analysis is unsound. Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether further relocation is in the best interests of a child.... Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a “present-based” analysis.

Id. The court recognized that its holding was in agreement with the proposition “that the trial court must make a final determination at the time of the hearing.” Id. at 459 n. 1. Here, the trial court improperly delayed a final determination for three years. See also Gergen v. Gergen, 48 So.3d 148, 150 (Fla. 1st DCA 2010) (“The issue of permanent periodic alimony was ripe for determination and thus the' circuit court was obligated to rule on the matter without reserving jurisdiction and deferring decision for a future date.”); Martinez v. Martinez, 573 So.2d 37, 40-41 (Fla. 1st DCA 1990) (determining that on final hearing for child custody the trial court abused its discretion in naming the father the “interim primary residential parent” and deferring the final decision for two years to see how the parties’ situations and conduct developed).

Therefore, we reverse the temporary order as to this issue and remand the case to the trial court. We direct that upon a party filing a notice of nonjury trial, the trial court shall conduct a final hearing as soon as possible and within ninety days.

The Former Husband also challenges the sufficiency of the timesharing schedule, the allocation of timesharing costs, and the adjustment of child support. In light of the trial court’s findings, the absence of a transcript, and our reversal on the temporary three-year order, we do not reverse on these issues. We cannot tell from our limited record what the cost of travel would be, but it seems likely that travel to and from Australia would have a significant effect on the parties’ finances. In making a determination on final hearing, the court must consider whether the travel is feasible based on the parties’ resources. See § 61.13001(7)(c) (requiring the trial court to evaluate the financial circumstances when considering the substitute arrangements). - If the trial court determines that the travel is feasible and allows relocation, the trial court’s final order must include a timesharing schedule. See Zepeda v. Zepeda, 32 So.3d 679, 681 (Fla. 2d DCA 2010). If permanent relocation is allowed, the final order also must allocate the transportation costs and “may adjust the child support award, as appropriate, considering the costs of transportation and the respective net incomes of the parents in accordance with the state child support guidelines schedule.” See § 61.13001(9)(b).

In summary, based on the trial court’s entry of a three-year “temporary” order of relocation, we reverse that order and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WALLACE, JJ., Concur.

      . Nothing in this opinion should be construed as requiring a change in the status quo pending a final hearing.


author: BLACK, Judge.

text:
    In the Interest of K.M., a child, P.P., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D11-5767.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
    Ita M. Neymotin, Regional Counsel, Second District, and Robert D. Rosen, Assistant Regional Counsel, and Joseph Thye Sexton, Assistant Regional Counsel (substituted as counsel of record), Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee.
   BLACK, Judge.

P.P., the mother, appeals an order placing her child, K.M., into a permanent guardianship and terminating protective supervision. Because the Department of Children and Family Services (DCFS) did not properly notify the mother that the hearing in this case was a permanent guardianship hearing and because the mother was not afforded an opportunity to present evidence at an evidentiary hearing prior to the child’s placement in permanent guardianship, we reverse and remand this case for an evidentiary hearing.

I. Background Facts

On February 3, 2010, DCFS filed a petition for adjudication of dependency against P.P. and I.M., the father, due to the parents’ prescription drug use and inadequate supervision of K.M., the child. DCFS sheltered K.M. for one day, and then the court entered an order returning K.M. to her mother and father’s custody on the condition that the parents cooperate with the child protection investigator. A little over a week later, the parents consented to an adjudication of dependency and a ease plan was initiated. In June 2010, DCFS again sheltered K.M. because the mother and father were arrested. The court later ordered a change of custody, and K.M. was placed in the care of the mother’s cousin, D.R.

After DCFS sheltered K.M. the second time, there were three judicial review hearings. The mother was found noncom-pliant at the first review, except for the portion of time that she was incarcerated; she was found partially compliant at the second review; and she was found partially compliant at the third review. A general magistrate conducted all three reviews, and the court issued orders adopting all three of the magistrate’s report and recommendations.

In the report and recommendation from the third review, the magistrate noted that DCFS had filed an amended case plan on June 13, 2011, with a concurrent goal of reunification and permanent guardianship and an overall goal compliance expiration date of December 8, 2011. The amended case plan was signed by the mother, was accepted and approved in the report and recommendation, and was adopted by an order of the court. The report and recommendation from the third review also noted that the next judicial review hearing was scheduled for October 27, 2011; however, there was nothing in the report and recommendation that indicated the October 27, 2011, hearing was regarding permanent guardianship.

On September 23, 2011, DCFS filed a document titled, “Judicial Review Social Studies [sic] Report/Case Plan Update/Permanency Review Social Studies Report and Notice of Hearing.” The judicial review social services report stated that the mother was found noncompliant with certain aspects of her case plan at the last judicial review and that “[a] permanency staffing [would] be held on 10/17/11 to discuss closing [KM.’s] case permanent guardianship.” Under the heading of the report, there was a statement that read, “This is also a Permanency Review,” but there was no date listed for a permanency hearing under the judicial review section. The notice of hearing attached to the report indicated that the hearing on October 27, 2011, was regarding a “Judicial Review/Case Plan Update.” The record contains no other notices indicating that the October 27, 2011, hearing was a hearing regarding permanent guardianship.

At the beginning of the October 27, 2011, hearing, DCFS recited the mother’s case plan goals, stating that she was either partially compliant with the goal or non-compliant. However, the witnesses did not present testimony in a format where they were called for direct or cross-examination; they simply spoke when addressed by the magistrate. And the magistrate did not admit any evidence into the record.

Toward the middle of the hearing, DCFS made an ore tenus motion to terminate DCFS supervision of K.M. and place her in permanent guardianship with the maternal cousin, D.R. Specifically, DCFS argued:

DCFS ATTORNEY: And then we are asking to close permanent guardianship for [K.M.]
MOTHER’S ATTORNEY: And we’d be objecting to that. There is no way the mother wants to close the case, permanent guardianship. She’s working on her case plan.
DCFS ATTORNEY: You had set this for a very short [judicial review] and listed out explicitly what the mother needed to do by certain dates, and the majority of that was not done.

The magistrate then continued the hearing, asking more questions about whether the mother complied with her case plan. After each of the court’s questions, either DCFS or the case manager’s supervisor answered regarding the mother’s noncompliance. The mother was not able to cross-examine the witnesses regarding their testimony; however, she did voice her contentions about the accuracy of the witnesses’ testimony.

Subsequently, the magistrate asked if there was “[a]ny other evidence or testimony!;,]” and then the magistrate made an oral finding that KM. should be placed in permanent guardianship. At the conclusion of the hearing, DCFS waived its right to file any exceptions to the report, and the mother’s attorney stated: “I’m not going to waive. I mean I guess I’ll waive, but I know we’ll file an appeal, but I don’t think I’ll file exceptions.” The magistrate then asked if she was going to waive or not. The attorney stated: “Well, I don’t think — I’m not going to file exceptions. I’m sure she’s going to want me to file those (indiscernible) appeal.”

Following the hearing, the magistrate issued a report and recommendation, finding the mother partially compliant with her case plan and recommending that K.M. be placed in permanent guardianship with the mother’s cousin and have weekly visitation with the mother. The trial court issued three orders following the magistrate’s report and recommendation: an order of judicial review, approving the findings of the magistrate’s report and recommendation from the October 27, 2011, hearing; an order placing the child in a permanent guardianship and terminating protective services; and a separate order for the permanent guardian, issued pursuant to section 39.6221(3), Florida Statutes (2011).

II. Analysis

The mother asserts a two-prong, due process argument. First, she asserts that DCFS did not provide her proper notice for the permanency hearing. Second, she contends that she was entitled to an evi-dentiary hearing and not simply a judicial review hearing. DCFS contends that the language in the judicial review social services report and the amended case plan properly notified the mother that the October 27, 2011, hearing was a permanency hearing. Additionally, although DCFS concedes that the record does not show any witnesses were sworn prior to the hearing, DCFS maintains that the record could be supplemented to show that witnesses were sworn at 1:00 p.m. for the 2:00 p.m. hearing. DCFS also contends that the mother had the opportunity to present evidence and witnesses and to cross-examine DCFS’s witnesses at the hearing. Moreover, DCFS argues that following the magistrate’s report and recommendation, the mother did not properly set the matter before the trial court for an evidentiary hearing.

We do not agree that the State properly noticed the mother for the permanency hearing. Section 39.621(3)(a) states:

At least 3 business days before the permanency hearing, the department shall file its judicial review social services report with the court and serve copies of the report on all parties. The report must include a recommended permanency goal for the child, suggest changes to the case plan, if needed, and describe why the recommended goal is in the best interest of the child.

(Emphasis added.) Here, the judicial review social services report filed on September 23, 2011, states that a discussion regarding permanent guardianship was going to be held on October 17, 2011; thus, the State had not determined a recommended permanency goal for the child at the time it filed its September 23, 2011, report, and there were no other reports or recommendations filed prior to the October 27, 2011, hearing. Additionally, although there was a statement under the heading of the report that read, “This is also a Permanency Review,” the report did not contain a date for the permanent guardianship hearing. In fact, at the October 27, 2011, hearing, the mother still had December 8, 2011, listed as her overall compliance date on her case plan; thus, she still had a little over a month to complete her case plan. The report also did not state why permanent guardianship would be in the best interest of the child. Because DCFS failed to notice the mother regarding a permanent guardianship hearing, we find DCFS failed to comply with the statute and due process. See A.L. v. Dep’t of Children & Families, 53 So.3d 324, 328 (Fla. 5th DCA 2010) (“The procedures utilized in a dependency action must comport with due process principles.”).

However, even if we could construe the judicial review social services report as providing proper notice, the mother was still denied due process because the October 27, 2011, hearing was not an evidentia-ry hearing. See T.H. v. Dep’t of Children & Family Servs., 928 So.2d 1291, 1294 (Fla. 2d DCA 2006) (holding that the magistrate’s recommended order terminating temporary supervision and placing the child in permanent guardianship was not supported by competent, substantial evidence because the magistrate failed to hold an evidentiary hearing and that the failure to hold an evidentiary hearing violated the father’s due process rights). Although DCFS argues that all parties and witnesses were sworn in prior to the hearing, this is not indicated in the record, and even if it was, there were no witnesses called, there was no direct or cross-examination of any of the witnesses, and there was no evidence admitted. Based on the record before us, it is clear that the judicial review hearing was not an evidentiary hearing.

It is also clear from the record that the mother was surprised by the State’s oral motion to place the child in permanent guardianship and that the mother properly objected to the oral motion during the hearing. Although DCFS contends that the mother’s failure to file exceptions to the magistrate’s report and recommendation waived the issues she now raises on appeal, we do not agree. Cf. Aspsoft, Inc. v. WebClay, Inc., 983 So.2d 761, 764-65 n. 1 (Fla. 5th DCA 2008) (concluding that under Florida Rule of Civil Procedure 1.490(h), which is worded similarly to Florida Rule of Juvenile Procedure 8.257(f)— the juvenile rule of procedure on filing exceptions to a magistrate’s report — the appellant did not waive a claim of error by failing to file exceptions to the general magistrate’s report).

The mother also argues that the trial court’s order failed to make the proper findings pursuant to section 39.6221(2)(a)-(f). However, since we conclude the mother’s due process rights were violated, there is no need to address the mother’s second issue concerning the trial court’s findings.

Because the mother did not receive proper notice and because the trial court failed to conduct an evidentiary hearing, we reverse and remand for an evidentiary hearing.

Reversed and remanded for further proceedings.

LAROSE and CRENSHAW, JJ., Concur.

      . We note that the record indicates there was another child involved in this case. However, it appears that the other child, S.F., turned eighteen on November 30, 2011, and is not a party to the order of permanent guardianship in this appeal. Accordingly, the notice of appeal indicates that the appeal is only in the interest of K.M., and we address only the issues pertaining to K.M.


author: WHATLEY, Judge.

text:
    Darron L. BRANTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4308.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Darron L. Branton appeals his judgments and sentences for robbery with a firearm and three counts of accessory after the fact to robbery with a firearm. We affirm his judgment and sentence for robbery with a firearm without discussion; however, we reverse his judgments and sentences for the three counts of accessory after the fact and remand for the trial court to vacate those judgments.

Branton was convicted of robbery with a firearm and three counts of accessory after the fact to robbery with a firearm based on the same criminal act. The evidence at trial showed that Branton drove three other men to the Hilltop Food Market, the three men entered the store and robbed the owner at gunpoint, and Bran-ton then drove the three men from the store to a hotel. After a jury trial, Bran-ton was convicted as a principal to the crime of robbery with a firearm for driving the getaway car, and he was convicted of three counts of accessory after the fact to robbery with a firearm for driving the getaway car for the three other men. After the jury returned a verdict of guilty on all four counts, the trial court should have dismissed the accessory after the fact counts as the lesser of the two offenses. See Williams v. State, 66 So.3d 360, 361 (Fla. 2d DCA 2011), review granted, 70 So.3d 588 (Fla.2011).

“[A] person convicted as a principal to a crime cannot also be convicted as an accessory after the fact to the same crime, since these two offenses are mutually exclusive.” Donaldson v. State, 722 So.2d 177, 184 (Fla.1998). In Staten v. State, 519 So.2d 622, 623-24 (Fla.1988), the appellant was convicted of second-degree murder, aggravated battery, armed robbery, and three counts of accessory after the fact. Similar to the circumstances in the present case, the appellant stayed in the car while others committed the murder, robbery and battery, and thereafter, the appellant drove the others to her mother’s house and the group separated. Id. at 623. The Florida Supreme Court concluded that the legislature intended that the offense of accessory after the fact apply only to individuals who are not principals in the underlying offense. Id. at 626. The court noted that convictions for both offenses do not violate double jeopardy principals and that its decision was based only on its construction of the statute defining the crime of accessory after the fact. Id. at 625 (citing § 777.03, Fla. Stat. (1985)). The court reasoned that “a principal cannot also become an accessory after the fact by his or her subsequent acts.” Id.; see also Bowen v. State, 791 So.2d 44, 50 (Fla. 2d DCA 2001) (“[A] person cannot be convicted as both a principal in a crime and as an accessory after the fact to the same crime, and the crime of accessory after the fact cannot arise until the underlying crime is complete.”).

Accordingly, we reverse and remand Branton’s judgments and sentences for three counts of accessory after the fact to robbery with a firearm for the trial court to vacate those judgments and sentences. Branton’s judgment and sentence for robbery with a firearm is affirmed.

Affirmed'in part and reversed in part.

KHOUZAM and BLACK, JJ., Concur.

      . One of the three men stood in the doorway and acted as a lookout.


text:
    Kathleen TRUXELL, by and through Nancy BACHOR, Personal Representative, Appellant, v. MANOR CARE-CARROLLWOOD OF TAMPA, FL-LLC, Appellee.
    No. 2D10-5792.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Matthew J. Conigliaro of Carlton Fields, P.A., St. Petersburg; and Leah A. Sevi of Carlton Fields, P.A., Tallahassee, for Ap-pellee.
   CASANUEVA, Judge.

Kathleen Truxell, by and through Nancy Bachor as personal representative, appeals an order granting Manor Care’s motion to compel arbitration. On the two issues raised in the initial brief, we affirm without comment. However, in light of the supreme court’s recent holdings in Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla.2011), and Gessa v. Manor Care of Florida, Inc., 86 So.3d 484 (Fla.2011), we remand to the trial court for further consideration.

Affirmed; remanded for further consideration.

SILBERMAN, C.J., and DAVIS, J., Concur.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Francisco GARCIA-COSTA, Appellee.
    No. 2D11-1840.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Judge.

The State appeals the downward departure sentence imposed on Francisco Garcia-Costa on a plea to unarmed robbery, obstructing or opposing an officer without violence, trespass on property other than a structure or conveyance, and battery. See §§ 812.13(1), (2)(c); 843.02; 810.09(l)(a), (2)(a); 784.03(1), Fla. Stat. (2010). We have jurisdiction. See Fla. R.App. P. 9.140(c)(1)(M). The State argues that the trial court erred in sentencing Garcia-Costa to only the mandatory prison releasee reoffender (PRR) minimum sentence of 15 years, see § 775.082(3)(c), Fla. Stat. (2010), instead of the lowest permissible sentence of 17.5 years called for under the criminal punishment code scoresheet. See § 921.0024, Fla. Stat. (2010); Fla. R.Crim. P. 3.704(d)(25). None of the reasons offered by the trial court support a downward departure. We must reverse.

The State offered to accept a plea in exchange for a 15-year PRR sentence. Garcia-Costa rejected the offer. After receiving confirmation that Garcia-Costa indeed qualified for PRR sentencing, the State withdrew the 15-year offer and offered a 17.5-year PRR sentence in exchange for a plea. Over the State’s objection, the trial court extended and Garcia-Costa accepted the 15-year PRR offer he previously rejected. The trial court concluded that Garcia-Costa cooperated with the State by confessing to the crimes after being given his Miranda warnings. Next, the trial court noted that Garcia-Costa did not use a real weapon but only a hairbrush, committed the isolated offenses in an unsophisticated manner, and showed remorse.

These reasons do not support the imposed sentence. Confession after arrest does not constitute cooperation justifying a downward departure sentence. See, e.g., State v. White, 894 So.2d 293, 294 (Fla. 2d DCA 2005); State v. Knox, 990 So.2d 665, 668 (Fla. 5th DCA 2008). Nor does the record reflect that (1) Garcia-Costa committed the offenses in an unsophisticated manner, (2) the offenses were isolated, and (3)he has shown remorse. See § 921.0026(2)©; State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005). For the trial court to apply this mitigator, the record must support all three elements. Ayers, 901 So.2d at 945; White, 894 So.2d at 294. Garcia-Costa’s prior seven armed robberies, eight unarmed robberies, two attempted robberies, burglary, and grand theft hardly demonstrate an isolated criminal offense. See Ayers, 901 So.2d at 945; State v. Waterman, 12 So.3d 1265, 1268 (Fla. 4th DCA 2009). Thus, the trial court could not rely on section 921.0026(2)(j). We also observe that Garcia-Costa’s use of a hairbrush instead of a real weapon cannot support a downward departure; unarmed robbery was a charged offense, and the guidelines score already accounts for the lack of a weapon. See State v. Sachs, 526 So.2d 48, 50 (Fla.1988) (citing State v. Mischler, 488 So.2d 523, 525 (Fla.1986), clarified sub nom. State v. Rousseau, 509 So.2d 281, 282-83 (Fla.1987)); State v. Chapman, 805 So.2d 906, 908 (Fla. 2d DCA 2001). Absent justification for a downward departure, the trial court should not have imposed the 15-year sentence over the State’s objection.

Reversed and remanded for further proceedings.

WHATLEY and CRENSHAW, JJ., Concur.

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


text:
    Fernando SOTO, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3287.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
   CASANUEVA, Judge.

Fernando Soto appeals the order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He asserted three claims: the first two claimed ineffective assistance of counsel, but the third was not cognizable on a postconviction motion. We affirm without comment the denial of postconviction relief except in one respect. We reverse that part of the final order that denied relief on related claims A(4) and B, that counsel was ineffective for coercing him to plead by threatening to withdraw as counsel.

Nineteen-year-old Mr. Soto was on probation for misdemeanor battery and felony possession of cocaine when he violated probation by committing an attempted robbery with a firearm. He entered an open plea to the new charge and the resulting violation of probation. Although he qualified for youthful offender sentencing, the trial court declined to sentence him as a youthful offender. Instead, the trial court sentenced him to ten years’ incarceration with a minimum mandatory term of ten years for use of the firearm for the attempted armed robbery, forty-six months’ concurrent incarceration for the felony possession of cocaine, and time served for the misdemeanor battery. He did not appeal these judgments and sentences but did file a timely motion for postconviction relief.

In related claims A(4) and B, Mr. Soto alleged that his trial counsel had pressured him into pleading by saying that if he chose to go to trial, counsel would withdraw from his case, the trial court would not appoint him new counsel, and he would have to defend himself pro se at trial. After receiving a State response to this claim, the postconviction court summarily denied it and attached certain pages of the transcript of the change of plea hearing to ground the denial. We conclude that the attached pages of the change of plea hearing do not conclusively refute Mr. Soto’s allegations that he was coerced into pleading by his counsel’s alleged threats.

Consequently, we affirm those parts of the summary denial of postconviction relief not related to the claim of counsel’s alleged threat to withdraw. We reverse the remaining portion and remand to the post-conviction court to hold an evidentiary hearing on the claim that Mr. Soto’s trial counsel threatened to withdraw from representing him if he chose to go to trial rather than plead to the charges.

Affirmed in part, reversed in part, and remanded.

LaROSE and CRENSHAW, JJ., Concur.


text:
    James B. STANFORD, Appellant, v. Paul George CHAGNON and Dena Morgan Pace, Appellees.
    No. 2D11-2476.
    District Court of Appeal of Florida, Second District.
    April 25, 2012.

      C. Samuel Newman of Lucas, Green & Magazine, Clearwater, for Appellant.
    Amy L. Miles of McCumber, Daniels, Buntz, Hartig & Puig, P.A., Tampa, for Appellee Paul George Chagnon.
    No appearance for Appellee Dena Morgan Pace.
   ALTENBERND, Judge.

James B. Stanford appeals a final summary judgment determining that Paul George Chagnon is not liable under the dangerous instrumentality doctrine for the alleged negligent operation of his pickup truck by Dena Morgan Pace, his adult, nonresident stepdaughter. We reverse because the record does not establish that there is no disputed issue of material fact and that Mr. Chagnon is entitled to judgment as a matter of law.

In November 2009, Ms. Pace was driving Mr. Chagnon’s pickup truck when she allegedly made a left-hand turn in front of Mr. Stanford, causing an accident in which he sustained injuries. In February 2010, Mr. Stanford filed a negligence action against Ms. Pace, as the driver, and Mr. Chagnon, as the owner.

A law firm whose attorneys are employed by GEICO General Insurance Company filed an appearance on behalf of both defendants. The lawyers from GEICO filed an answer admitting that Mr. Chag-non owned the truck and that Ms. Pace was operating the vehicle with his permission and consent. They also responded to a request for admissions on behalf of Ms. Pace admitting that she was a permissive user of the vehicle.

About six months later, Mr. Stanford’s attorney took the depositions of Ms. Pace and Mr. Chagnon. Mr. Chagnon testified that he owned the truck and that, at the time of the accident, he was at work and thought the truck was parked in his carport at home. Although he had allowed his stepdaughter to drive this truck on more than ten occasions in the past, he had not given her permission to drive the truck on the day of the accident.

Mr. Chagnon’s deposition is very brief. Mr. Stanford’s lawyer did not establish the location of the keys to the truck for the relevant period. He did not ask who may have been in charge of the truck when Mr. Chagnon was at work. He did not go into any detail about the multiple occasions in the past when Ms. Pace had been allowed to drive the truck. We do not criticize Mr. Stanford’s attorney in this regard because Mr. Chagnon and his stepdaughter had already admitted that Mr. Chagnon owned the truck and that Ms. Pace was a permissive user. The GEICO lawyer, who appeared on behalf of both defendants, did not ask any questions, apparently aware that she had developed a conflict in this joint representation.

The deposition of Ms. Pace is equally brief and contains only a few questions concerning her permissive use of the truck. At the time of the accident, Ms. Pace no longer lived with her mother and stepfather, but she apparently lived nearby and did not own a vehicle of her own. When asked how she came to be driving her stepfather’s vehicle, Ms. Pace answered, “I was supposed to have returned it, and when I went to go return it my mother was — she was sleeping or whatever, so I took it upon myself to keep it.” She admitted that she did not have her stepfather’s permission to drive the vehicle “that day.” The accident happened while she was driving to a drugstore to shop. Again, the GEICO lawyer who was representing Ms. Pace and her stepfather asked no questions. Ms. Pace’s testimony suggests or implies that she had obtained this vehicle the day before this accident and did not return it on the day of the accident. She does not explain whether she had been given permission to use the truck at some earlier time and had simply kept it longer than expected.

Following these depositions, in early November 2010 the GEICO lawyers withdrew from this case and, oddly, another law firm appeared on behalf of both defendants. Within a month, that law firm recognized its conflict. It withdrew only from the representation of Ms. Pace, and a third law firm appeared on her behalf.

Renee Chagnon is the mother of Ms. Pace and the wife of Mr. Chagnon. Her deposition was taken after the new attorneys appeared in this case. This deposition is longer and focuses on the issue of Ms. Pace’s permissive use of the vehicle. It is clear from this deposition that Mrs. Chagnon thinks her husband is very protective of his truck, that he does not like others to drive it, and that he was not happy about the situation. As she explained, “He wanted to hang me for giving her the keys to the truck.”

According to his wife, Mr. Chagnon would leave the truck parked at home with the keys hanging on the wall in a location designated for keys. She admitted that on prior occasions she had given her daughter permission to drive this truck “behind his back.” On this occasion, Mrs. Chagnon was “sick that day” and did not remember whether she had given her daughter permission to drive the truck. When asked if she had permission from Mr. Chagnon to take the truck whenever she wanted and loan it out without telling him about it, she answered, “Well, my mother always told me this: You never let your right hand know what your left hand is doing.” She revealed that when her husband received the papers for the lawsuit, he was so mad he wanted to divorce her over it. She added, “He’s trying to throw his authority at me because I allowed her to take his truck. Well, I’m sorry. If she needed to borrow the truck, she borrowed it. He will have to get over it.”

From this testimony, it appears undisputed that Mr. Chagnon did not give his express personal permission for his stepdaughter to drive this vehicle on the day of the accident, but it is entirely possible that her mother had general access to this truck and freely allowed her to use the vehicle on the day before the accident; Ms. Pace simply had not yet returned the vehicle when this accident occurred.

Following this deposition, the lawyers representing Mr. Chagnon moved to amend his answer to the complaint to contest permissive use and also moved for summary judgment based on these depositions. The trial court allowed Mr. Chag-non to amend his answer, but Ms. Pace’s answer remained unchanged, including her admission to the allegation in the complaint that she had permission to drive the truck. Additionally, no one sought relief under Florida Rule of Civil Procedure 1.370(b) from the effect of Ms. Pace’s admission that had been provided in the response to the request for admissions. The trial court, nonetheless, granted the motion for summary judgment and entered judgment based on the content of the depositions. Mr. Stanford then appealed.

We cannot conclude that these depositions adequately support a summary judgment, especially in the face of the admission in the record from Ms. Pace that would conflict with some of the testimony in her brief deposition. Even without regard to the admission by Ms. Pace, if Mrs. Chagnon is a bailee of the motor vehicle when it is left at home with its keys in the designated location on the wall, then it is possible that she is liable in this context for her bailment to her daughter and that her husband is liable in turn as her bailor. As succinctly stated by Judge Schwartz, writing for the Third District:

To the same extent as the owner, a bailee (or sub-bailee) of a motor vehicle is liable to third persons under the dangerous instrumentality doctrine for the negligence of one to whom he has entrusted it. Frankel v. Fleming, 69 So.2d 887 (Fla.1954); Brown v. Goldberg, Rubenstein & Buckley, P.A., 455 So.2d 487 (Fla. 2d DCA 1984), pet. for review denied, 461 So.2d 114 (Fla.1985); 4 Fla. Jur. 2d Automobiles and Other Vehicles § 292 (1978).

State Farm Mut. Auto. Ins. Co. v. Clauson, 511 So.2d 1085, 1086 (Fla. 3d DCA 1987).

The parent-child relationship alone cannot be used as an independent basis for holding parents vicariously liable for the use of a motor vehicle by a child. Aurbach v. Gallina, 753 So.2d 60, 66 (Fla.2000). Nevertheless, in the context of family automobiles used by other family members, the courts have hesitated to declare that the owner, as a matter of law, did not give express or implied consent to the family member who was operating the vehicle at the time of an accident. See Thomas v. Atlantic Assocs., Inc., 226 So.2d 100 (Fla.1969); Ming v. Interamerican Car Rental, Inc., 913 So.2d 650 (Fla. 5th DCA 2005). In regard to rental vehicles, the supreme court has held the owner responsible under the dangerous instrumentality doctrine unless the breach of custody amounts to a species of conversion or theft. See Susco Car Rental Sys. of Fla. v. Leonard, 112 So.2d 832, 835-36 (Fla.1959). While the standard may not be quite that high for a family car, we believe it is premature to grant summary judgment in favor of Mr. Chagnon on the basis of this record.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.

      . After the entry of the final summary judgment but before the filing of the notice of appeal, Mr. Stanford filed with the trial court a notice of voluntary dismissal as to Ms. Pace. The reasons for that dismissal are not disclosed in this record. No one has appeared on behalf of Ms. Pace in this appeal, and the parties participating in this appeal have taken no position on whether she should be regarded as a party to this appeal under the unusual procedural posture of this case. To the extent that the summary judgment is adverse to Ms. Pace, given that she was a party at the time the judgment was rendered, we are inclined to believe that she is entitled to be a party to this appeal. However, we see no reason to resolve this thorny issue at this time; whether she is or is not a party to this appeal, the adverse ruling that we reverse in this opinion should not be binding on Ms. Pace.

      . Since 1959, the statutory law governing rented and leased vehicles has become quite complex, but the supreme court has not altered its position on the dangerous instrumentality doctrine. See Chandler v. Geico Indem. Co., 78 So.3d 1293 (Fla.2011).


author: PER CURIAM.

text:
    William David BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-74.
    District Court of Appeal of Florida, Second District.
    April 25, 2012.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K Bock, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm without prejudice to William Brown’s right, if any, to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850.

NORTHCUTT, WALLACE, and LaROSE, JJ., Concur.


text:
    Mariano SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4115.
    District Court of Appeal of Florida, Second District.
    April 25, 2012.
    Ricardo Corona, Manuel Guarch, and Nina Tarafa of The Corona Law Firm, Miami, for Appellant.
   PER CURIAM.

Affirmed. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed; question certified.

CASANUEVA, KHOUZAM, and BLACK, JJ., Concur.


author: SAWAYA, J.

text:
    Brandon BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1558.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2012.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Brandon Brown appeals his conviction for aggravated battery with a deadly weapon in violation of section 784.045(l)(a)2., Florida Statutes. He used two hollow, flimsy, plastic broomsticks as the alleged “deadly weapon.” The specific issue we must resolve is whether the broomsticks used by Brown are “deadly weapons” under this statute.

A detailed discussion of the facts and circumstances of this case is not necessary to resolve the issue before us. Suffice it to say that Brown was charged by Amended Information with sexual battery, false imprisonment, and aggravated battery with the use of a deadly weapon. The deadly weapon specifically alleged in the Amended Information to have been used by Brown is a “broom stick.” The State attempted to establish that Brown used two broomsticks to batter the victim, Brown’s former girlfriend with whom he has a child.

At the conclusion of the State’s case, defense counsel moved for a judgment of acquittal on the charge of aggravated battery, arguing that the broomsticks had not been introduced into evidence, there were no photographs of them, and that the only evidence presented by the State was that the broomsticks were flimsy, bent, and broke after one or two uses, and did not and could not inflict any kind of harm, much less great bodily harm. The trial judge denied the motion. Brown testified and admitted to hitting the victim with plastic broomsticks, but stated that they broke pretty easily after one strike. After Brown testified, the defense rested and renewed the motion for judgment of acquittal on the aggravated battery charge on the same grounds as previously argued. The motion was denied. The jury returned its verdict finding Brown guilty of battery, a lesser included offense of sexual battery; not guilty of false imprisonment; and guilty of aggravated battery with a deadly weapon. Brown contends that the trial court erred in denying his motion for judgment of acquittal. Our standard of review is de novo.

An essential element of the offense of aggravated battery with a deadly weapon that the State must prove beyond a reasonable doubt under section 784.045(l)(a)2. is that the object used to commit the offense is a deadly weapon. See Wolfork v. State, 992 So.2d 907, 909 (Fla. 2d DCA 2008); Thomas v. State, 932 So.2d 1221, 1224 (Fla. 5th DCA 2006); C.A.C. v. State, 771 So.2d 1261, 1262 (Fla. 2d DCA 2000). Section 784.045, like other statutes that proscribe criminal conduct with the use of a “deadly weapon,” does not provide a definition of that term. Therefore, the courts have supplied the definition. A deadly weapon is defined as an instrument that will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design. Michaud v. State, 47 So.3d 374, 376 (Fla. 5th DCA 2010). Clearly, these broomsticks do not fit this definition. The courts further define a deadly weapon as an object that is used or threatened to be used in a way likely to produce death or great bodily harm. Id. This is the definition of deadly weapon that the State utilized to convict Brown.

The only evidence presented by the State to prove the broomsticks used by Brown were deadly weapons came from the victim, who testified, “So, next thing I know he was hitting me, beating me with them poles, but they — I mean, they was like flimsy, so they just bent right up after like five times he swung them.” She further testified that the broomsticks “bent very quick so I’d say about — he probably got a good two licks on my head ... and a couple of times on my legs.” When asked how it felt to get hit with the handles, she testified that “it just stinged. It wasn’t really painful.” The victim further testified that Brown stopped when the broomsticks bent and broke and he could not use them anymore. She told the jury that he folded them in his hand and stopped using them. On cross-examination, the victim told the jury that she received only some stinging sensations when she was hit with the broomsticks and that she did not receive any injury or medical attention for injuries sustained from being attacked with the broomsticks.

This evidence not only fails to establish that the broomsticks were deadly weapons, it clearly establishes that they are not. The broomsticks were made out of hollow plastic and were so flimsy that they bent when Brown struck the victim. The victim suffered no injury and testified that it only stung when she was struck with the broomsticks. When Brown saw he could not injure the victim with the broomsticks, he folded them in his hand and stopped using them. If there is any fact established by this testimony, it is that the broomsticks are not deadly weapons because they were not likely to cause great bodily harm. Great bodily harm under section 784.045 is distinguished from slight, trivial, or moderate harm that maybe caused by a simple battery. J.L. v. State, 60 So.3d 462 (Fla. 1st DCA 2011); Chesnoff v. State, 840 So.2d 423 (Fla. 5th DCA 2003); C.A.C.

The courts have not hesitated to reverse convictions when the State fails to present competent substantial evidence that the object used is a deadly weapon. In C.A.C., the defendant was convicted of aggravated battery for stabbing the victim two or three times in the back. C.A.C., 771 So.2d at 1262. The alleged deadly weapon was a fork. Unlike the victim in the instant case who suffered no injury, the victim in C.A.C. had scratches, swelling, and puncture marks on his back inflicted with the fork, but did not require any medical treatment for his injuries. The Second District Court reversed the aggravated battery conviction and remanded with instructions to And the defendant guilty of battery. Id. at 1262-63. The court reasoned that a fork is not likely to cause death or great bodily harm when used in the ordinary manner contemplated by its design and that there was no evidence that the fork, as used by the defendant, was likely to cause great bodily harm. Id. at 1262.

Similarly in J.L., the court reversed a conviction for aggravated battery with a deadly weapon because the State failed to prove that the plastic fork used by the defendant was deadly. The court explained:

[Ojur review of the record in this case compels us to find that there was insufficient evidence to support a finding that the plastic fork used by Appellant was likely to cause great bodily harm. In reaching its conclusion, the trial court stated that it recognized the human neck’s “vulnerability,” and determined that the fork was “very sharp and very solid.” Based on these findings, the trial court concluded that “[Appellant] was lucky that he wasn’t two inches off’ because, had he been, he “could have punctured a very, very important part of [the victim’s] neck.” In doing so, the court incorrectly engaged in conjecture about what might have happened had Appellant stabbed the victim in a different part of the neck, without any evidence that this perceived potential for great bodily harm was likely based upon the actual circumstances of this case.
... Here, there was no evidence that the injury that likely would result from the way in which Appellant stabbed the victim with a plastic fork would be anything more serious than the victim’s actual injury — scratches and redness— which is the type of injury likely to ensue from a simple battery. This is not to say that under no circumstances can a plastic fork be used in such a way that it can be classified as a deadly weapon, only that those circumstances did not exist here.

J.L., 60 So.3d at 465.

In Nguyen v. State, 858 So.2d 1259, 1260 (Fla. 1st DCA 2003), the court determined that counsel may have been ineffective because he failed to move for a judgment of acquittal in a prosecution for aggravated battery with a deadly weapon, explaining:

“A deadly weapon is 1) any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm, or 2) any instrument likely to cause great bodily harm because of the way it is used during a crime.” D.C. v. State, 567 So.2d 998, 1000 (Fla. 1st DCA 1990). No cases in Florida appear to have determined whether a stun gun can constitute a deadly weapon either by its ordinary use, or by the way it was used in a crime. In the instant case, the state failed to present any testimony that a stun gun qualifies as a deadly weapon by its ordinary use and there was insuffi-dent evidence to establish that it was a deadly weapon in the manner it was used on this victim. Thus, it appears that there was insufficient evidence as a matter of law to support a charge of aggravated battery for the use of a deadly weapon.

In its brief, the State quotes Duba v. State, 446 So.2d 1167, 1169 (Fla. 5th DCA 1984), which states that “whether or not an object is a deadly weapon is a question of fact to be determined by the jury... .” However, a jury verdict must be based on sufficient evidence introduced by the State to establish that the instrument is a deadly weapon. The testimony offered at trial, which is the only evidence in the record, did not establish that Brown used the broomsticks in a way that was likely to cause great bodily harm.

Moreover, the State did not introduce into evidence the broomsticks or pictures of them. See Dale v. State, 703 So.2d 1045, 1047 (Fla.1997) (“In the present case, the jury had a sufficient basis for concluding that Dale’s weapon was deadly. Of key importance is the fact that the jury had an opportunity to view the weapon first-hand.”); Brooks v. State, 726 So.2d 341, 342 (Fla. 5th DCA 1999) (“The wooden-handled kitchen knife was entered into evidence and displayed to the jury. The jury was properly instructed as to the definition of a ‘deadly weapon’ and determined that the knife in evidence was one. Based on the facts of this case, the jury’s determination is warranted by the record.”); Duba v. State, 446 So.2d 1167, 1169 (Fla. 5th DCA 1984) (“We hold that whether or not an object is a deadly weapon is a question of fact to be determined by the jury from the evidence, taking into consideration its size, shape and material and the manner in which it was used or was capable of being used.”); see also Jones v. State, 869 So.2d 1240, 1242 (Fla. 4th DCA 2004); Simmons v. State, 780 So.2d 263, 265 (Fla. 4th DCA 2001) (quoting Duba). Because the broomsticks were not submitted into evidence and the State did not introduce a picture of them, the jury did not have the ability to view the broomsticks to determine if they were of the size, shape, and material to cause serious injury as they were used by Brown. The only evidence the jury had to base its verdict on was the testimony that the broomsticks were hollow and flimsy and bent when used and that Brown stopped using them when he could not hurt the victim with them.

We conclude that the State failed to present sufficient evidence to prove that the broomsticks are deadly weapons and its argument in favor of affirmance literally begs the question of how an instrument can be a deadly weapon when the defendant stops using it because the instrument is not capable of injuring the victim. Therefore, the trial court erred in denying Brown’s motion for judgment of acquittal. Accordingly, we reverse Brown’s conviction for aggravated battery with a deadly weapon. Because the elements of battery are sufficiently alleged in the Amended Information and the State did prove that Brown committed that crime, we remand this case so the trial court can enter a judgment of conviction for battery and impose an appropriate sentence for that offense.

REVERSED and REMANDED.

PALMER, and EVANDER JJ., concur.

      . "Generally, an appellate court will not reverse a conviction which is supported by competent substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (citations omitted), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003).

      . We will make one parenthetical note concerning the State's contention in this regard. The courts have held that "[wjhether or not the weapon involved is to be classified as 'deadly' is a factual question to be resolved by the jury under appropriate instructions." Dale v. State, 703 So.2d 1045, 1047 (Fla.1997) (emphasis added); see also Simmons v. State, 780 So.2d 263, 265 (Fla. 4th DCA 2001) (quoting Dale). The court in Dale stated that "[a] ‘deadly weapon’ has generally been defined to be one likely to produce death or great bodily injury." Dale, 703 So.2d at 1047 (emphasis added). Here, according to the transcript, the trial court instructed the jury that “[a] weapon is a deadly weapon if it is used, or threatened to be used in a way likely to produce death or bodily harm." The modifier “great” was omitted. Thus, the jury could have found Brown guilty of aggravated battery because he used the broomsticks in a way that was likely to cause slight or moderate bodily harm. See Stone v. State, 899 So.2d 421 (Fla. 5th DCA 2005) (holding that it cannot be assumed that the jury disregarded the erroneous oral instruction even though it was provided with a correct copy of written instructions). In any event, we need not discuss this issue further because it was not raised by the parties and because it does not form a basis for our decision in this case.

      . In Jones, the court reversed a conviction for robbery with a deadly weapon because the jury verdict was not based on sufficient evidence that the robber used a deadly weapon. The court explained:
      Relying on Dale, we conclude that the state did not present the type of evidence necessary to sustain a jury finding that this BB gun was a deadly weapon. The jury did not have an opportunity to view the weapon or the ammunition because the state destroyed it. No one testified or showed the jury how the BB gun operated. In short, there was no evidence from which a jury could determine whether this particular BB gun was likely to produce great bodily harm or even that it was operable. The jury could not properly rely on a picture alone to determine the deadliness of the gun. In fact, the only evidence of the BB gun's capacity to inflict injury was the appellant’s testimony that the gun "couldn't hurt a fly.”
      Because the state failed to produce evidence of the deadliness of the BB gun, the jury's finding that the BB gun was a deadly weapon was not supported by any evidence.

        Jones, 869 So.2d at 1242.

      . See Jaimes v. State, 51 So.3d 445 (Fla.2010) (holding that where the defendant was improperly convicted on the charged offense of aggravated battery, but the elements of simple battery were alleged in the charging document, supported by the proof at trial, and each element was determined by the juty beyond a reasonable doubt, the appellate court could remand the case to the trial court to direct entry of judgment on simple battery).