author: TAYLOR, J.

text:
    Karen J. TOPOL, Appellant, v. Joely POLOKOFF, Virginia Lockwood-Zisa, Newbridge Securities Corporation, a Florida corporation, and Sanford C. Bernstein & Co., LLC, a foreign limited liability company, Appellees.
    No. 4D10-3834.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Jacqueline S. Miller and Brandon For-gione of Broad and Cassel, West Palm Beach, for appellant.

      Arnold L. Berman, Stephen T. Maher and Danet Rodriguez Figg of Shutts & Bowen, LLP, West Palm Beach, for Appel-lee-Joely Polokoff.
    Richard W. Withers and Matthew Daren Valdes of Kaufman, Englett & Lynd, PLLC, Orlando, for Appellee-Virginia Lockwood-Zisa.
   TAYLOR, J.

Karen J. Topol appeals from a final summary judgment in favor of Joely Polo-koff and Virginia Lockwood-Zisa. The appeal concerns a dispute over entitlement to an IRA account owned by appellant’s husband, who died while divorce proceedings were pending between him and appellant. The trial court entered final summary judgment for appellees, the husband’s daughters, after determining that interlocutory orders which compelled the husband to change his IRA account beneficiary designation from appellees to appellant did not survive abatement of the divorce proceedings upon the husband’s death. We agree and affirm.

Factual Background

After a twenty-year marriage, appellant initiated dissolution of marriage proceedings against her husband, Kenneth A. Po-lokoff. At that time, appellant was listed as the beneficiary of her husband’s New-bridge Rollover Individual Retirement Account (IRA). On May 16, 2007, about a month after the dissolution action was filed, the husband executed a new beneficiary designation, removing appellant as the primary beneficiary of the IRA account and naming his two daughters as co-primary beneficiaries. At that time, there was no court order prohibiting this change, and the husband did not advise the wife or judge in the dissolution proceedings of his beneficiary change.

On June 19, 2007, in an Agreed Partial Temporary Relief Order, the husband agreed he would not withdraw any funds from his retirement accounts, and both parties were prohibited from dissipating, disposing of, or transferring any assets to third parties or third party accounts. When the wife later found out during discovery about the IRA beneficiary change made by the husband on May 16, she filed a motion for contempt, or alternatively, for additional temporary relief and clarification of the order dated June 19, 2007.

The trial court found the husband in contempt for failing to disclose the beneficiary change — not for making the change — and ordered him to restore appellant as the beneficiary of the IRA account. Twice, he refused and appealed to our court. In August 2008, the family court warned him that if he continued to refuse to obey the court’s order he would be held in contempt and taken into custody. He acquiesced and designated appellant as the sole beneficiary of the IRA account. He died after signing the designation, but before the court entered a final judgment of dissolution of marriage. The trial court granted appellant’s motion to have the dissolution proceedings dismissed.

Appellee Joely Polokoff sought a declaratory decree that the August 2008 beneficiary designation of appellant was invalid because the interlocutory order forcing her father to designate appellant as the beneficiary of the IRA account was null and void, along with any other actions taken pursuant to the interlocutory order. Polokoff asked the court to restore her and her sister as the valid beneficiaries of their father’s IRA account pursuant to his May 2007 designation.

Both sides ultimately filed motions for summary judgment. They agreed that there were no disputed issues of material fact and that only questions of law remained. The trial court granted Polokoff s motion for summary judgment, ruling that the interlocutory order (and the resulting IRA designation) ceased to exist upon the husband’s death, as they did not survive the abatement of dissolution proceedings. Analysis

We review a trial court’s entry of final summary under a de novo standard. Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)).

The dissolution of marriage proceedings were properly dismissed upon the death of appellant’s husband. See Marlowe v. Brown, 944 So.2d 1036, 1040 (Fla. 4th DCA 2006). In Marlowe, the husband died before the entry of a final judgment of dissolution of marriage. Before his death, at the beginning of the divorce case, he had entered into a “mediation settlement agreement.” Id. at 1037. The trial court entered an order on the settlement agreement and determined that the property would be split “fifty-fifty.” Id. at 1038. The order “did not place a value on any asset.” Id. After the husband died, his brother, serving as the personal representative of the estate, sought enforcement of the mediation agreement, contending that it survived the death of the husband and controlled the distribution of property after his death. Id. at 1040. We disagreed and held that the mediation agreement and subsequent prejudgment order did not survive the husband’s death while the divorce was pending. Id. We noted that “[ijnterlocutory orders in a divorce proceeding generally do not survive the dismissal of a lawsuit when a spouse dies before the entry of a final judgment” and that, after the death of a spouse during a divorce, it is as if. no divorce has ever been had. Id. We further reasoned that the mediation agreement was “too tentative and preliminary to control the disposition of property after the death of the husband,” and noted that the order granting the wife’s motion to divide joint accounts 50-50, like the agreement, was “interlocutory only, a step in the direction of a final solution, the final judgment that was never entered.” Id. at 1040-41.

Here, appellant acknowledges that the order requiring the husband to designate her as beneficiary of the IRA account was interlocutory, intended only to preserve the status quo and protect her in the event that her husband died before a final judgment of dissolution could be entered. She further concedes that the order was temporary in nature. A temporary order seeking to preserve the status quo pending a final decree cannot be said to be a final decree devising property in it of itself, and thus, the order in this case did not survive the abatement of the dissolution proceedings. See Marlowe, 944 So.2d at 1039-40 (citing Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105, 106-07 (1944)).

Appellant next argues that, even if the order did not survive, her designation as the beneficiary of the IRA account did. The question of whether an action made by a party pursuant to a null and void interlocutory order in a dissolution proceeding survives the abatement of the proceedings has not been squarely addressed in Florida. However, several other jurisdictions, which, like Florida courts, hold that the death of a party in a dissolution proceeding abates the proceedings, have refused to give any effect to actions taken pursuant to orders that have become a nullity. See, e.g., Aither v. Estate of Aither, 180 Vt. 472, 913 A.2d 376, 379 (2006) (“Such a rule would give temporary orders the effect of final distributions of property, thereby unnecessarily creating property rights in parties protected by such initial orders.”); Wilharms v. Wilharms, 93 Wis.2d 671, 287 N.W.2d 779, 783 (1980) (“This Court reasoned that the temporary order is designed to maintain the status quo pending a final resolution of respective property interests. It is not intended to be the ultimate determination of the property rights of the parties.”); Briece v. Briece, 703 F.2d 1045, 1047 (8th Cir.1983) (applying Illinois law and stating, “The temporary restraining order should not be recognized as doing what the death of [one of the parties in a divorce action] prevented the Illinois Circuit Court from doing in a final decree.”); Am. Family Life Ins. Co. v. Noruk, 528 N.W.2d 921, 924 (Minn.App.1995) (“The rule [the surviving spouse] proposes would essentially permit a temporary order to make a final distribution, even though it was never intended to do so.”); Geraghty v. Geraghty, 411 Pa.Super. 53, 600 A.2d 1261, 1264 (1991) (holding that a temporary order of the trial court which would amount to a distribution of marital assets upon the death of a party could not be given legal effect).

In Florida, parties may not appeal the non-final orders of the family court after the proceedings have been abated by the death of a party. See Marlowe, 944 So.2d at 1040-41. Enforcing the beneficiary designation, as appellant proposes, would amount to enforcing a non-appealable and non-final order that determined the property rights of the parties. Every individual has the right to an appeal, and an order which strips an individual of that right should not be enforced. See Bohannon v. McGowan, 222 So.2d 60, 61 (Fla. 2d DCA 1969) (stating that “justice would be denied” if an order was “immune from appeal”); see also Ramos v. Philip Morris Cos., 714 So.2d 1146, 1148 (Fla. 3d DCA 1998) (stating that the right to appeal is constitutionally protected). Thus, we agree with those courts which have found that the ruling urged by appellant would be unjust. We hold that a designation of beneficiary change made pursuant to a court order seeking to preserve the status quo in a dissolution of marriage proceeding does not survive the abatement of the proceedings upon the death of one of the parties.

We have reviewed and considered appellant’s remaining arguments on appeal and find them to be without merit. Accordingly, we affirm the trial court’s entry of final summary judgment in favor of appellees.

Affirmed.

POLEN and HAZOURI, JJ., concur.

      . Appellee Lockwood-Zisa was originally a defendant below, but this court granted her motion to realign herself as an appellee for purposes of this appeal.

      . The appeals were dismissed upon the death of die husband; we never determined the validity of the family court's order.


source: Caselaw Access Project

author: SHEPHERD, J.

license: Public Domain

text:
    Andrew S. TAPLIN, Appellant, v. Martin W. TAPLIN, et al., etc., Appellees.
    No. 3D10-2919.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.

      Rohan Kelley, Ft. Lauderdale, for appellant.
    Greenberg Traurig and Paul R. Lipton and Julissa Rodriguez; Victor M. Diaz, Jr., Miami, for appellees.
    Before SHEPHERD, CORTINAS, and ROTHENBERG; JJ.
   SHEPHERD, J.

This is an appeal by a trust beneficiary from an order and final judgment dismissing his second amended complaint, which sought an accounting, breach of trust, removal of trustees, and surcharge, with prejudice, on the ground the claims are time-barred as a matter of law on the face of the complaint. We reverse the order and final judgment and remand for reinstatement of the second amended complaint. A brief summary of the facts and procedural history of this case are necessary to explain our decision.

FACTS AND PROCEDURAL BACKGROUND

This is an action filed by Andrew S. Taplin against his father, Martin W. Tap-lin, and Moisés Chorowski, individually and as co-trustees of the Sol. M. Taplin Trust, under agreement dated July 6, 1981, for the use and benefit of his son Martin’s three children, Andrew Taplin, Jennifer Taplin Sazant, and Kristopher Taplin. The trust agreement created three equal trusts for the benefit of the children. Andrew Taplin was twelve-years old when the trust was established. Neither Jennifer nor Kristopher have joined in the action, but are named as nominal defendants.

Andrew alleges his father and Cho-rowski breached their duties as trustees in numerous respects, including failure to fully and properly account for the assets in the trust, withholding distributions (including the terminating distribution), and self-dealing. The trustees’ principal argument is that Andrew Taplin’s causes of action are barred by his failure to object within the limitation periods set forth in section 737.307, Florida Statutes (2007), or, alternately, by the four-year limitation period for bringing an action for an intentional tort under section 95.11(3)(o), Florida Statutes (2007). We disagree.

ANALYSIS

Section 737.307, Florida Statutes

At the time the trust was created in this case, section 737.307 (now section 736.1008), read as follows:

737.307 Limitations on proceedings against trustees after beneficiary receives account.
—Unless previously barred by adjudication, consent, or limitations, an action against a trustee for breach of trust is barred for any beneficiary who has received a final, annual, or periodic account or other statement fully disclosing the matter unless a proceeding to assert the claim is commenced within 6 months after receipt of the final, annual, or periodic account or statement. In any event, and notwithstanding lack of full disclosure, all claims against a trustee who has issued a final account or statement received by the beneficiary and has informed the beneficiary of the location and availability of records for his examination are barred as provided in chapter 95. A beneficiary has received a final account or statement if, being an adult, it is received by him or if, being a minor or disabled person, it is received by his representative as described in s. 731.303.

§ 737.307, Fla. Stat. (1981).

Section 737.307 of the Florida Statutes provides for a limitation on actions against a trustee in two circumstances, delineated respectively by the first and second sentences of the statute. The first sentence imposes a short, six-month limitation period for bringing an action against a trustee for a breach of trust if the beneficiary has received a final, annual, or periodic account “fully disclosing the matter.” The second sentence imposes a four-year limitation period for bringing an action against a trustee for a breach of trust if the beneficiary “has received a final account or statement” and the trustee “has informed the beneficiary of the location and availability of records.”

The distinguishing characteristic between the two limitation provisions is whether the account or statement “fully discloses the matter” to the beneficiary. For the six-month limitation period to apply, there must have been given an “account” or “statement” which “fully discloses the matter.” The second limitation period applies to a trustee when a “final account” or “statement” provided by a trustee does not satisfy the “full disclosure” threshold required of the first, but the trustee also makes pertinent trust records available as required by the statute. Importantly, however, a precondition to the commencement of either limitation period is the receipt by the beneficiary of an “account” or “statement,” whether it is final, annual, or periodic. See Davis v. Monahan, 832 So.2d 708, 711 (Fla.2002) (articulating the Florida Legislature’s statute codifying the limitations period for claims against a trustee under section 737.307, Florida Statutes, is triggered after the beneficiary receives an accounting). It is on this latter requirement the parties join issue.

The trustees assert Andrew Taplin pled himself out of court by alleging he did, in fact, receive an accounting. In so doing, the trustees appear to place primary reliance on an allegation in Count I, which seeks an accounting, in which Andrew alleges, “The Defendants have never provided the plaintiff with a trust accounting as required under Florida law.” The trustees argue the language used in the complaint, “as required under Florida law,” presupposes Andrew did, in fact, receive some type of accounting, just not in accordance with Florida law. We find this to be “too thin a reed” upon which to rest the harshest of consequences meted out in this case. In fact, in Count II, “Breach of Trust and Removal of Trustees and for Damages,” Andrew specifically alleges, “Defendants breached their fiduciary duties to the Plaintiff by, among other things ... [flailing and refusing to provide the Plaintiff with an accounting.” Finally, at the hearing on the trustees’ motion to dismiss the second amended complaint, trustees’ counsel agreed the second amended complaint, if fairly read, asserts Andrew “never got an accounting at all.” Taking the allegations of the second amended complaint in the light most favorable to the plaintiff, as we are required to do, the second amended complaint is not on its face subject to dismissal under section 737.307 of the Florida Statutes.

Chapter 95, Florida Statutes

The trustees next argue at a minimum, the second amended complaint is subject to the four-year statute of limitations period found in section 95.11(3)(o) of the Florida Statutes, which has read at all times pertinent to this case as follows:

95.11 Limitations other than for the recovery of real property — Actions other than for recovery of real property shall be commenced as follows:
(3) WITHIN FOUR YEARS.—
(o) An action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort ....

(emphasis added). As we understand the trustees’ argument, the trustees contend section 95.11(3)(o) limits the reach back of the second amended complaint in this case to four years from the date it was filed. This contention also is flawed.

It has long been recognized at common law that a statute of limitations is inapplicable to shield trustees from their responsibilities to their beneficiaries. Nayee v. Nayee, 705 So.2d 961, 963 (Fla. 5th DCA 1998). As the Florida Supreme Court stated before the turn of the last century:

[I]n cases of continuing trusts that are strictly such, and recognized and enforced in courts of equity only, so long as the relation of trustee and cestui que trust continues to exist, no length of time will bar the cestui que trust of his rights in the subject of the trust as against the trustee [subject to certain exceptions not relevant here].

Anderson v. Northrop, 30 Fla. 612, 12 So. 318, 324 (Fla.1892); see also Sewell v. Sewell Props., 159 Fla. 570, 30 So.2d 361, 362-63 (1947) (“Where the trustee by fraud or deception, or even by keeping quiet when he should speak and account to his cestui, causes the cestui to be ignorant of the rights of the cestui and of the duties of the trustee, laches will not be imputed to the cestui until discovery of the true condition.”). In fact, when the Legislature created chapter 95 in 1872, a statute-denominated “limitations on actions,” the Legislature expressly precluded the applicability of the statute to cases against a trustee of an express trust. See § 95.02, Fla. Stat. (1872) (“This chapter shall not apply to any action ... with respect to any moneys or property held or collected by any officer or trustee or his sureties.”).

In 1974, the Legislature repealed section 95.02. See ch. 74-382, § 26, Laws of Fla. At the same time the Legislature undertook a major revision of section 95.11 of the Florida Statutes, which included the addition of section 95.11(3)(o). The trustees argue by eliminating section 95.02 of the Florida Statutes while simultaneously creating an express subsection of Chapter 95 to cover “intentional torts,” the Legislature sub silencio must have intended the newly minted section 95.11(3)(o) to apply unconditionally to all cases brought against a trustee for breach of trust.

The trustees forget, however, that in the same legislative session in which section 95.02 was repealed, section 737.307, Florida Statutes, was created. See ch. 74-106, § 1, Laws of Fla. As previously noted, the second sentence of section 737.307 provides for a limited application of Chapter 95 to actions against a trustee, namely those actions where (1) “[the] trustee ... has issued a final account or statement [to] the beneficiary,” and (2) “has informed the beneficiary of the location and availability of records for his examination.” See § 737.307, Fla. Stat. (1975). Section 95.02 necessarily had to yield to this incursion by the Legislature into the law of equity. Absent fulfillment by a trustee of the two conditions set forth in the second sentence of section 737.307 of the Florida Statutes, the common law remains in full force and effect with respect to actions brought by a beneficiary against a trustee of a trust. To hold otherwise, as the trustees would have us do in this case, would be contrary to the express language of the law provided to us by the Legislature. See Butler v. State, 838 So.2d 554, 556 (Fla.2003) (“It is presumed that statutes are passed with the knowledge of existing statutes, so courts must favor a construction that gives effect to both statutes rather than construe one statute as being meaningless or repealed by implication.”).

CONCLUSION

Because Andrew Taplin’s second amended complaint cannot fairly be read to invoke any of the triggers found in section 737.307, Florida Statutes, and section 95.11(3)(o), Florida Statutes, does not apply to actions for breach of trust, the trial court erred in dismissing the complaint with prejudice. We reverse and remand for further proceedings.

      . The Trust initially designated Martin W. Taplin and Martin Kalb as co-trustees. Kalb resigned on August 17, 1988, and was replaced sometime thereafter by Chorowski.

      . A breach of trust is an intentional tort under Florida law. See Patten v. Winderman, 965 So.2d 1222, 1225 n. 1 (Fla. 4th DCA 2007).

      . In 2006, the Legislature repealed section 737.307 and created section 736.1008 in its stead. See ch. 2006-217, §§ 10, 48, Laws of Fla.; In re Amends. to the Fla. Probate Rules, 964 So.2d 140, 141 (Fla.2007) ("In 2006, the Legislature repealed chapter 737, Florida Statutes (Trust Administration), and created new chapter 736, Florida Statutes (Florida Trust Code).”). Although this statutory law has been amended several times throughout its existence, see § 737.307, Fla. Stat. (history), for purposes of the issues in this appeal, there is no practical difference in the application of the two statutes. The most substantial change in the law is the addition of slightly more stringent preconditions effective after January 1, 2003. See ch. 2002-82, § 12, Laws of Fla.


author: EMAS, J.

text:
    Jose and Anais SUAREZ, Appellant, v. BENIHANA NATIONAL OF FLORIDA CORP., Appellee.
    No. 3D11-1626.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.

      Ricardo R. Corona and Carolina Corona, for appellant.
    Klein Glasser Park Lowe & Pelstring and Michael Shelley, Miami, for appellee.
    Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge.
   EMAS, J.

This is an appeal from an order of the trial court dismissing with prejudice Appellants’ second amended complaint, based upon a finding that Appellants perpetrated a fraud upon the court. For the following reasons, we reverse.

Appellants, Jose Suarez and Anais Suarez, filed a complaint (subsequently amended twice) against Benihana National of Florida Corporation (“Benihana”) seeking damages for severe injuries they (and the four-year-old daughter of Anais Suarez) allegedly sustained when they were attacked and beaten by at least three other patrons at the Benihana restaurant. The operative complaint alleged that Ben-ihana was negligent in failing to provide adequate security at the restaurant.

The incident occurred at the Benihana restaurant on August 4, 2006. Appellants had finished eating at the restaurant and were waiting outside for the valet to bring their car when they were confronted by one of the attackers. A verbal altercation initially began between Jose Suarez and one of the attackers. This initial verbal altercation appeared to have ended, but was later renewed when two other individuals came out of the restaurant, joined their friend (the first attacker), and verbally confronted Jose Suarez again. The verbal confrontation soon escalated into a physical altercation, during which Appellants were beaten by the three men. As a i’esult of the incident, the three men were arrested and charged with felonies arising out of the assault and battery upon Appellants. In January of 2007, each of the Appellants was deposed by the attorneys representing the defendants in the criminal proceeding. Those depositions were transcribed and were a part of the file maintained by the Clerk of Courts in the criminal proceeding.

In June of 2009, nearly three years after the incident, Appellants commenced their civil action against Benihana. In February of 2011, more than four years after the depositions were taken in the criminal case, Appellants were deposed by attorneys representing Benihana in the civil action.

During the course of the 2011 civil deposition, Jose Suarez gave answers which contradicted some of the answers he provided in his 2007 criminal deposition. The inconsistencies of Jose Suarez, as detailed by the trial court in its dismissal order, are set forth below:

— In his criminal deposition, Jose Suarez testified that he “had a drink” the night of the incident. In his civil deposition he testified that he “did not drink alcohol that night.”

— In his criminal deposition, Jose Suarez testified he acknowledged using profanity when talking to the attackers. In his civil deposition, he testified he never used profanity.

— In his criminal deposition, Jose Suarez testified that before the attacker began punching him, the attacker was “patting me on the chest.” In his civil deposition, he testified that the first physical contact was when the attacker punched him.

— In his criminal deposition, Jose Suarez testified that when the attacker punched him “I punched him back.” In his civil deposition, he testified that “I did nothing to cause or contribute to the fight.”

— In his criminal deposition, Jose Suarez testified that one of the attackers asked him “Do you want to fight? Let’s go across the street.” In response, Jose Suarez told the attacker “No, let’s do this right here.” In his civil deposition he testified that, in response to the attacker’s question he replied “I’m not moving from here. I’m not going anywhere.”

— In his criminal deposition he testified “I go to fight him.” In his civil deposition he testified that he never suggested that he was willing to fight them.

Anais Suarez also gave a deposition in both the criminal and civil cases. She attended the civil deposition of Jose Suarez and was present during his questioning by the attorney for Benihana. Her civil deposition was taken a week later and lasted three hours. At the end of her deposition, she was asked whether there was anything incomplete or inaccurate about the four and one-half hour deposition testimony Jose Suarez had given a week earlier. She answered: “Only the birth dates [of family members].”

Further, in her criminal deposition, Anais Suarez testified that Jose Suarez told the initial attacker: “We’ll go across the street and I’ll fight you there.” In her civil deposition, she testified that Jose Suarez never said he would fight them.

This is the sum and substance of the alleged inconsistencies given by Anais Suarez in her two depositions.

Based upon these asserted inconsistencies and contradictions, Benihana moved for dismissal of the second amended complaint with prejudice. The trial court held a hearing (at which no live testimony was offered) and granted Benihana’s motion to dismiss, finding clear and convincing evidence that Appellants “jointly and collu-sively engaged in a scheme designed to prevent the trier from impartially adjudicating this matter through lies, misrepresentations, contradictory statements and otherwise hiding the truth.” The court also found that Appellants’ contradictory statements “rise[ ] to the level of perjury in official proceedings (Section 837.02, Florida Statutes) and perjury by contradictory statements (Section 837.021, Florida Statutes).” Finding that Appellants had perpetrated a fraud upon the court, the court dismissed the second amended complaint with prejudice.

Although we review the trial court’s order under an abuse of discretion standard, Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337 (Fla. 3d DCA 2001), we do so with the understanding that this standard is “somewhat narrowed,” as it must take into account the heightened standard of “clear and convincing evidence” upon which an order of dismissal for fraud on the court must be based. See Ramey v. Haverty Furniture Co., 993 So.2d 1014 (Fla. 2d DCA 2008). The burden was upon Benihana to establish

clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter of improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense. When reviewing a case for fraud, the court should consider the proper mix of factors and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system.

Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)).

Having conducted a thorough review of the record below, including a review of all four depositions, we conclude that the trial court abused its discretion in its imposition of this most severe of sanctions. While there are certainly inconsistencies and contradictions in the deposition testimony given by Jose Suarez in 2007 and 2011, the record simply fails to demonstrate clearly and convincingly that Appellants “collusively engaged in a scheme designed to prevent the trier from impartially adjudicating this matter through lies, misrepresentations, contradictory statements and otherwise hiding the truth.” More importantly, we disagree with Ben-ihana’s assertions and the court’s conclusion that the contradictions and inconsistencies go “to the very heart of the claims” against Benihana, justifying dismissal of the action with prejudice.

Although a trial court has the authority to dismiss a case with prejudice where it has been established that a plaintiff has committed a fraud upon the court in the prosecution of the action, such a power must be exercised with great caution. Such a sanction is reserved only for those cases involving “the most blatant showing of fraud, pretense, collusion or other similar wrongdoing.” Laurore v. Miami Auto. Retail, Inc., 16 So.3d 862, 864 (Fla. 3d DCA 2009) (quoting Young v. Curgil, 358 So.2d 58, 59 (Fla. 3d DCA 1978)). See also Francois v. Harris, 366 So.2d 851, 852 (Fla. 3d DCA 1979) (observing that “in all but the most extreme cases, our system entrusts juries with the ultimate decisions” on a disputed claim, and that “[o]ur experience has demonstrated that juries deserve this trust and that they are well able to discern the truth and to render judgment accordingly”).

Even if the record in this case could give rise to some inference of willful or intentional conduct, the nature and substance of the inconsistencies and contradictions required the trial court to consider some lesser sanction, reflecting the proper balance of competing interests and appropriately tailored to address the party’s conduct and the resulting prejudice. Dismissal of a case is an extraordinary sanction and is appropriate only where a party’s misconduct is “correspondingly egregious.” Cox, 706 So.2d at 46. This case clearly fails to present the type of egregious misconduct or extreme circumstance to support dismissal with prejudice.

The order of dismissal with prejudice is vacated and this cause remanded for reinstatement of the action and for proceedings consistent with this opinion.

      . Although this is how the trial court characterized the testimony in its order of dismissal, in actuality, Jose Suarez answered "no” to the question: "Do you believe that you did anything to cause or contribute to the physical altercation that occurred?” As we have discussed, two different confrontations occurred that night: the first was a verbal confrontation between Jose Suarez and a single attacker; the second was the physical altercation between Jose Suarez and the three attackers which resulted in the alleged injuries to appellants. Jose Suarez was answering questions about the physical altercation (with the three attackers), not the verbal confrontation (with the single attacker) which had already occurred and ended.

      . These two statements do not appear to be materially contradictory or inconsistent.

      .When the entirety of the criminal and civil depositions are read and placed in proper context, it becomes clear that the testimony excerpt from the criminal deposition related to the initial verbal confrontation between Jose Suarez and the single attacker ("I go to fight him.") That verbal confrontation appeared to have ended when Jose Suarez told the attacker "Let’s do this right here.” Both men backed away from each other, and Jose Suarez went to his car to leave, at which time the other two attackers came out of the restaurant, joined their friend, and the three attackers renewed the confrontation, which soon escalated and became physical. By contrast, Jose Suarez’s testimony at the civil deposition (in which he said he did not "go to fight them ”) was given in response to a series of questions about this renewed physical altercation involving all three attackers.

      . It is worth noting that the civil deposition of Jose Suarez lasted four and one-half hours and is 170 pages long.

      . The same discussion at supra note 3 is applicable here.

      . Benihana alleged, and the trial court found, that Anais Suarez gave testimony in her civil deposition that contradicted Jose Suarez's testimony in his criminal deposition. While this may be true, it cannot be competent evidence to support a finding that Anais Suarez gave contradictory testimony in her two depositions. At trial, for example, Benihana would not be able to impeach Anais Suarez's testimony by introducing the prior inconsistent statement of Jose Suarez. See § 90.801(2)(a), Fla. Stat. (2006) ("A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: (a) Inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition”) (emphasis added). See also § 90.614, Fla. Stat.2006 (impeachment of witness permitted through introduction of "prior inconsistent statement by that witness”).

      . At the hearing on the motion to dismiss, the trial court advised counsel that she had not read the depositions (which were in evidence) but had read only the excerpts provided by counsel. A lesser degree of deference is accorded a trial court's ruling when no live testimony is presented and the order appealed is "based on the same cold document record that is before the reviewing court.” Jacob v. Henderson, 840 So.2d 1167, 1170 (Fla. 2d DCA 2003). See also W. Shore Rest. Corp. v. Turk, 101 So.2d 123, 126 (Fla.1958) (where trial court acted on the same pleadings, affidavits, and depositions which make up the record before the reviewing court, the presumption of correctness is not as strong because the trial court did not hear any testimony or make credibility determinations).


author: STEVENSON, J.

text:
    Wilson PIERRE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5262.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Defendant, Wilson Pierre, Jr., appeals his conviction and sentence for aggravated assault with a firearm. During closing argument, the prosecutor argued that the victim, who testified at trial, recanted his prior identification of Defendant because he was “scared.” Because there was no evidence that the victim’s recantation was motivated by fear or that the victim had been threatened with reprisal by Defendant or someone acting on Defendant’s behalf, we reverse and remand for a new trial.

The victim, “BD,” testified that on August 1, 2006, he was standing outside of his home working on his car. He saw a car drive towards him and then heard gunshots. Prior to hearing gun shots, BD observed the car door open and saw about five people inside. BD testified that he could not see the occupants’ faces because they were covered up.

The State sought to question BD concerning a prior, out-of-court identification that he made to the investigating police officer. The State presented a photo lineup where BD circled and initialed Defendant’s picture as one of the shooters in the car. BD confirmed that he made this identification to the investigating officer. BD identified two other individuals as shooters as well. However, BD testified that he made the identifications only because the investigating officer told him that the individuals identified were, in fact, in the ear. Further, BD testified that, at the time he made the identifications, he did not care who he identified because he was mad and wanted someone to be punished. BD recanted the identifications pri- or to the beginning of trial. During trial, BD stated that he did not want to testify because he did not know who was in the car, but agreed to do so because he was threatened with jail.

In closing argument, the prosecutor commented that BD “knew that it was [Defendant]” who “did it.” The prosecutor pointed out that the victim’s “lack of memory” only came two months before trial and four years after the incident. The prosecutor reasoned that it was “obvious” that BD was “scared.” Defendant objected repeatedly on the ground that these facts were not in evidence. The prosecutor subsequently, and over Defendant’s objections, made the following closing arguments: that what the victim said on the stand was a lie based on the fact that everything he said prior to trial was different; that the victim’s story did not change until he was told that he would have to testify and look into the eyes of the guy who shot at him; and that this was a “clear cut case of a guy that is scared of what’s going to happen.” As his defense, Defendant argued the victim was not under oath at the time that he made the prior identification and, if the victim was scared of anyone, it was the police officer. Defendant also argued the victim acted in “haste” and out of “emotion” when he made the prior identification.

Defendant moved for a mistrial and for a new trial on the grounds that there was no evidence that the victim was scared and that the prosecutor made this argument a feature of the trial. The trial court denied the motions. A trial court’s control of prosecutorial closing comments is reviewed for an abuse of discretion. See Brown v. State, 718 So.2d 923, 925 (Fla. 5th DCA 1998). Further, denial of a motion for a mistrial, or motion for a new trial, is reviewed for an abuse of discretion. See Barnett v. State, 45 So.3d 963, 966 (Fla. 3d DCA 2010) (motion for mistrial), review denied, 59 So.3d 107 (Fla.2011); Hubbard v. State, 912 So.2d 629, 632 (Fla. 1st DCA 2005) (motion for new trial). In order for the necessity of a new trial to arise, the improper prosecutorial comments must either: ‘“deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.’ ” Linic v. State, 80 So.3d 382, 392 (Fla. 4th DCA 2012) (quoting Fenster v. State, 944 So.2d 477, 479 (Fla. 4th DCA 2006)). A mistrial is appropriate where the error was “ ‘so prejudicial as to vitiate the entire trial.’ ” Id. at 393 (quoting Wicklow v. State, 43 So.3d 85, 87 (Fla. 4th DCA 2010)).

During closing argument, the prosecutor must confine argument to evidence in the record and not make arguments which cannot be reasonably inferred from the evidence. See Watson v. State, 50 So.3d 685, 686 (Fla. 3d DCA 2010). The prosecutor’s statements were improper because there was no evidence that the victim recanted the prior identification out of fear. The statements implied that Defendant may have engaged in witness tampering or suborning perjury. See Henry v. State, 651 So.2d 1267, 1268 (Fla. 4th DCA 1995) (prosecutor’s closing argument that witness offered testimony at trial that differed from deposition testimony because someone “got to her” constituted reversible error because it suggested that the defendant engaged in witness tampering and suborning perjury). Such comments are “highly irregular, impermissible, and prejudicial.” Id. Further, because there was no evidence that the victim recanted the identification because he was afraid, the comments implied that the prosecutor had “unique knowledge” that was not presented to the jury. Tindal v. State, 803 So.2d 806, 810 (Fla. 4th DCA 2001).

In conclusion, BD was the only eye-witness and there was scant physical evidence. Under these circumstances, we must find that the complained-of improper prosecutorial comments were so prejudicial as to deprive Defendant of a fair and impartial trial. See Espute v. State, 85 So.3d 532, 535 (Fla. 4th DCA 2012) (noting that a motion for mistrial based on improper prosecutorial comments should be granted where the comments are “so prejudicial as to vitiate the entire trial”) (citing Bright v. State, — So.3d —, 2012 WL 224067 (Fla.2012)). Accordingly, we hold that the trial judge abused his discretion in denying Defendant’s motion for mistrial and motion for new trial. We need not reach the other issues raised in this appeal.

Reversed and remanded.

WARNER and GROSS, JJ., concur.


author: PER CURIAM.

text:
    Eldrick WOODING, Sr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3166.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.

      Eldrick Wooding, Sr., in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and FERNANDEZ, JJ.
   PER CURIAM.

Appellant, Eldrick Wooding, seeks to appeal “a ruling” purportedly made on November 17, 2011, “stop[ping] the Defendant from filing his ‘pro Se’ Motion.” While our review of the record and trial court docket reflects Wooding, indeed, filed some type of pro se motion that was set for hearing for November 17, 2011, the record before us does not include the motion described by Wooding, or a written order reflecting a ruling on such motion. Therefore, we dismiss the appeal as premature.

Appeal dismissed.


text:
    Jason THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1585.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, and Jason Thompson, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We have reviewed the defendant’s pro se brief and the record. We affirm in all respects, but remand for correction of one of the sentencing orders. The transcript reflects that during the August 2, 2010 resentencing, the trial court sentenced the defendant to two years of probation on counts four and five. The record also contains an order reflecting that sentence issued on the same day. However, it also contains a drug offender probation order imposing two years of drug offender probation on the same counts, dated August 5, 2010. We affirm the case in all respects, but remand the case to the trial court to vacate the August 5, 2010 drug offender probation order.

Affirmed, but remanded for correction of the sentencing order.

MAY, C.J., DAMOORGIAN and CONNER, JJ., concur.


text:
    Neil B. FOX, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2922.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      Glenn H. Mitchell, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Neil Fox appeals his conviction for cultivation of marijuana. On appeal, he raises two issues challenging his conviction, which we affirm without comment. He correctly contends, however, that the written judgment mistakenly reflects that he was adjudicated guilty, even though the trial court orally pronounced that it was going to withhold adjudication. As the state properly concedes, remand is necessary to correct this scrivener’s error.

Affirmed, but remanded for correction of scrivener’s error.

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Excellus O. HYLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1325.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.
    Excellus 0. Hyland, in proper person.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SHEPHERD and CORTEÑAS, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal from an order denying a defendant’s motion for post-conviction relief, pursuant to Florida Rule of Civil Procedure 3.800(a). Although the State has confessed error, the notice of appeal was filed one day late. The deadline for filing a notice of appeal from a final post-conviction order is jurisdictional. See Am. Auto. Ass’n v. C.D.S. Towing & Recovery Inc., 805 So.2d 1064 (Fla. 3d DCA 2002) (“The time for taking an appeal is a jurisdictional requirement established by Florida Rule of Appellate Procedure 9.110(b). Where the notice of appeal is not filed within thirty days of rendition, the appellate court is precluded from exercising jurisdiction over the appeal.” (quoting Tyler v. State, Governor Chiles, 718 So.2d 811, 812 (Fla. 2d DCA 1997))). We therefore grant the State’s motion to dismiss the appeal, without prejudice to the appellant filing a Petition for Belated Appeal with this Court pursuant to Florida Rule of Appellate Procedure 9.141(c).

Appeal dismissed.


text:
    Morris LUNDY a/k/a Polo, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-757.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.
    Morris Lundy a/k/a Polo, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 722-23 (Fla. 3d DCA 2011) (holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”; rejecting Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 1308 (M.D.Fla.2011), in which federal court held that section 893.13, Florida Statutes (2004), “violates the due process clause and that the statute is unconstitutional on its face”); Ortega v. State, 76 So.3d 346 (Fla. 3d DCA 2011); see also State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011).


text:
    Vicama BEAUBRUN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4695.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Brian Balaguera of The Balaguera Law Firm, P.A., West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Green, 944 So.2d 208 (Fla.2006). See also Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011); McCalla v. State, 77 So.3d 845 (Fla. 4th DCA 2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011).

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    William T. PAGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-763.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.

      William T. Page, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTINAS, LAGOA, and SALTER, 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).


text:
    Gerald D. ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-377.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Gerald D. Armstrong, Stuart, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order denying appellant’s rule 3.850 motion as untimely. Appellant did not establish an exception to the time limitation. Fla. R.Crim. P. 3.850(b). Appellant suggests that his ability to file a timely motion to withdraw plea was frustrated by the ineffectiveness of counsel that represented him on the plea. However, counsel’s alleged deficiencies did not interfere with appellant’s ability to file a timely motion for post-conviction relief. Appellant filed two sets of timely post-conviction motions which were dismissed for procedural deficiencies without prejudice to refile. Appellant failed to file a proper motion within the two-year time limit. In an abundance of caution, we have considered the merits of appellant’s claims. His motion established no basis for post-conviction relief. His claim that his convictions for failure to register as a sexual offender violate his “ex post facto rights” is without merit. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Simmons v. State, 753 So.2d 762 (Fla. 4th DCA 2000).

Affirmed.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Emmanuel HILL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-897.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.

      Emmanuel Hill, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and ROTHENBERG and EMAS, JJ.
   PER CURIAM.

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


text:
    Daniel William BECKER, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee of The Indymac INDX Mortgage Trust 2007-FLX3, mortgage pass-through certificates, series 2007-FLX3 under the pooling and service agreement dated April 3, 2007; unknown spouse of Daniel William Becker; City of Pembroke Pines, Florida; and unknown person(s) in possession of the subject property, Appellees.
    No. 4D11-1149.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Rehearing Denied June 5, 2012.
    Carol C. Asbury of Save My Home Law Group, Fort Lauderdale, for appellant.
    Serena Kay Tibbitt and H. Michael Muniz of Kahane & Associates, P.A., Plantation, for appellee Deutsche Bank National.
   PER CURIAM.

Daniel Becker (“the homeowner”) appeals a summary judgment granting a mortgage foreclosure brought by the lender. He argues the trial court erred in entering summary judgment because the complaint was improperly verified and genuine issues of material fact precluded the entry of summary judgment. We find no error and affirm.

After the lender filed a complaint to foreclose the mortgage, the homeowner failed to respond, and a default was entered against him. He then retained counsel, who filed a combined motion to vacate the default, motion to dismiss the complaint, and written opposition to the motion for summary judgment the day before the summary judgment hearing.

The homeowner argued error in the entry of a summary judgment because the lender did not properly verify its complaint. More specifically, he argued that because the verification was attached to the complaint as a separate document rather than incorporated within it, the complaint failed to state a cause of action. Alternatively, he argued genuine issues of material fact precluded summary judgment. The homeowner refers to conflicting trial court decisions throughout this district and others that have either accepted or rejected complaints when the verification was not incorporated within the complaint.

We find no requirement in Florida Rule of Civil Procedure 1.110(b) that the verification be contained within the complaint. The rule provides in part:

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

Fla. R. Civ. P. 1.110(b).

Nothing in the rule prohibits the verification from starting on a separate page. All that the rule requires is that the document include “an oath, affirmation, or the following” identified language. We will not read more into the rule than its plain language dictates. See, e.g., Trucap Grantor Trust 2010-1 v. Pelt, 84 So.3d 369 (Fla. 2d DCA 2012) (holding trial court erred in relying on section 92.525(2), Fla. Stat. (2010), requiring verification that the facts are “true” instead of rule 1.110(b), which was recently promulgated for foreclosure actions). The contention that a separate verification document violates rule 1.110(b) places form over substance. That we will not do.

For the reasons stated, we affirm the summary judgment.

Affirmed.

MAY, C.J., DAMOORGIAN and CONNER, JJ., concur.

      . The homeowner has not provided us with an order denying his motion to vacate the default and dismiss the complaint, a transcript of that hearing, or a transcript of the summary judgment hearing. We are confined to the record provided. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Without a sufficient record, there is nothing for us to review. Fleming v. Peoples First Fin. Sav. & Loan Ass'n, 667 So.2d 273, 274 (Fla. 1st DCA 1995).


text:
    Jeffrey ORNEST, Appellant, v. UNIVERSITY OF MIAMI, Appellee.
    No. 3D11-1970.
    District Court of Appeal of Florida, Third District.
    May 9, 2012.
    Gary A. Costales, Miami, for appellant.
    Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff, Teresa Ragatz and Susan V. Warner, Miami, for appellee.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. Smith v. Psychiatric Solutions, Inc,, 358 Fed.Appx. 76 (11th Cir. 2009), cert. denied, — U.S. —, 130 S.Ct. 3293, 176 L.Ed.2d 1186 (2010).


text:
    Kjell SHARPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1379.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant appeals the revocation of his probation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the revocation of appellant’s probation and sentence, but we remand for the trial court to enter a written order of revocation of probation that specifies the conditions appellant was found to have violated. A.T.J.F. v. State, 78 So.3d 57 (Fla. 4th DCA 2012); Ruiz v. State, 78 So.3d 57, 58 (Fla. 4th DCA 2012).

Affirmed; remanded.

POLEN, HAZOURI and LEVINE, JJ., concur.


text:
    Tommy MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2589.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      Antony P. Ryan, Regional Counsel, and Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Rodin YOUNESSI, Younessi Motorsports, LLC, a Florida limited liability company, d/b/a Lamborghini Palm Beach, Motorsports of Orlando, LLC, d/b/a Seminole Harley-Davidson, and Motorsports of Fort Lauderdale, LLC, Appellants, v. RECOVERY RACING, LLC, a New York limited liability company, d/b/a Ferrari-Maserati of Fort Lauderdale, Appellee.
    No. 4D11-3615.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2012.

      Peter W. Homer and Howard S. Gold-farb of HomerBonner, P.A., Miami, for appellants.
    Caressa A. Lanier of Schwartz & Eng-lander, P.A., Boca Raton, for appellee.
   PER CURIAM.

Appellants (collectively “Younessi”) entered into an agreement with Appellee (“Recovery Racing”), which contained an agreement to arbitrate under the American Arbitration Association (“AAA”) Rules. Instead of pursuing arbitration, Recovery Racing filed a complaint. Younessi responded to the lawsuit by filing a motion to compel arbitration and stay proceedings. Despite the contractual requirement of arbitration in accordance with AAA rules, the trial court ordered the parties to select an arbitrator. We find that this was error and reverse. Recovery Racing’s argument that the controversy is moot is without merit as the record demonstrates that a live controversy continued to exist when this appeal was filed. Godwin v. State, 593 So.2d 211, 212 (Fla.1992).

This court has jurisdiction over a trial court’s non-final determination which permits an arbitration proceeding outside of the arbitration agreement. See BDO Seidman, LLP v. Bee, 970 So.2d 869, 873 (Fla. 4th DCA 2007).

Where language of the contract clearly indicates that AAA rules govern, they are expressly incorporated into the contract. Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327, 1333 (11th Cir. 2005). The contract expressly stated that any dispute arising from it was to be arbitrated under AAA rules. Even though the contract does not specify how the arbitrator is to be selected, AAA rules have a procedure to be followed in such situations. In this case, AAA rules for the selection of an arbitrator should have been followed.

Florida courts have the authority to appoint arbitrators when the agreement fails to name an arbitrator or provide a method for determining the arbitrator. Reference to AAA rules provides a method for determining an arbitrator in this case. Thus, there was no authority for the court to appoint an arbitrator.

Recovery Racing’s one-page argument on appeal claims that Younessi’s compliance with the court order to select an arbitrator constitutes a waiver of the right to have AAA rules determine the selection of an arbitrator. A party seeking arbitration waives the right to arbitration by substantially participating “in litigation to a point inconsistent with an intent to arbitrate.” Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d 1309, 1315 (11th Cir. 2002); see also S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1514 (11th Cir.1990). The record does not persuade us that Younessi has substantially participated in litigation to a point inconsistent with his intent to arbitrate.

For the reasons stated, we reverse the trial court’s order compelling selection of an arbitrator.

Reversed.

MAY, C.J., DAMOORGIAN and CONNER, JJ., concur.

      . AAA Rule 11 requires that AAA send each party an identical list of ten names of individuals listed on its national roster and encourages the parties to agree on an individual from this list. American Arbitration Association Dispute Resolution Services Worldwide, Commercial Arbitration Rules and Mediation Procedures, R-ll. Appointment From National Roster, 25 (June 1, 2009), http://www.adr.org/ aaa/ShowProperty?nodeId=/UCM/ADRSTG_ 004103&amp;amp;revision= latestreleased. If the parties cannot agree, each has fifteen days to strike objectionable names, prioritize the list, and return it to AAA. Id. Then, AAA will select an arbitrator based upon mutual preference. Id.


author: MARSTILLER, J.

text:
    William SEALY, Appellant, v. PERDIDO KEY OYSTER BAR AND MARINA, LLC, a Florida Limited Liability Company, Appellee.
    No. 1D11-1996.
    District Court of Appeal of Florida, First District.
    May 10, 2012.

      David E. Hudgens of Hudgens & Associates LLC, Daphne, Alabama, for Appellant.
    Mark A. Bednar, Pensacola, for Appel-lee.
   MARSTILLER, J.

William Sealy (“Appellant”) filed a complaint for breach of contract, enforcement of construction lien, and account stated, alleging that Perdido Key Oyster Bar Restaurant and Marina, LLC (“Appellee”), had failed to pay money due to him under a contract for architectural services. Ap-pellee asserted as affirmative defenses, inter alia, that Appellant had no right to bring an action until he registered with the Department of State the fictitious name under which he was doing business, “William Sealy Architects,” as required by section 865.09(9)(a), Florida Statutes (2007); and that the construction lien was void and unenforceable because Appellant had failed to obtain a certificate of authorization from the Department of Business and Professional Regulation to provide architectural services under the fictitious name, as required by section 481.219(2), Florida Statutes (2007). Appellant filed a pleading denying the affirmative defenses.

Appellee moved to dismiss the complaint and to dismiss and discharge the lien based on the affirmative defenses set out above. The trial court granted the motions and entered a Final Judgment of Dismissal With Prejudice, Discharge of Lis Pendens and Discharge of Claim of Lien. Appellant argues that the court erred in granting Appellee’s motions because in doing so, the court considered matters beyond the four corners of the complaint.

Indeed, the final judgment reflects that in considering Appellee’s motions, the trial court not only conducted a “review of the pleadings,” but also reviewed and ultimately relied on additional material submitted by Appellee. The material dehors the pleadings included Appellant’s deposition testimony and printed copies of pages from the Department of State’s website, wmo.sunbiz.org, purportedly showing that “William Sealy Architects” is not a registered fictitious name.

The purpose of a motion to dismiss is to test the legal sufficiency of a complaint, not to determine factual issues. See Felder v. Dep’t of Mgmt. Servs., Div. of Retirement, 993 So.2d 1031, 1034 (Fla. 1st DCA 2008). “For purposes of ruling on a motion to dismiss, the trial court may-look no further than the four corners of the complaint, and all allegations in the complaint must be accepted as true.” Nevitt v. Bonomo, 53 So.3d 1078, 1081 (Fla. 1st DCA 2010). Clearly, the trial court here looked beyond Appellant’s complaint, and erred in doing so. Even if, as it appears, the court treated Appellee’s motions as seeking judgment on the pleadings, the court reversibly erred because when ruling on such a motion, a court must accept as true the allegations of the party opposing the motion, and treat as false all allegations of the movant that were denied. See Holley v. Innovative Tech. of Destin, Inc., 803 So.2d 749, 750 n. 2 (Fla. 1st DCA 2001); accord Cuccarini v. Rosenfeld, 76 So.3d 328, 330 (Fla. 3d DCA 2011). Although Appellant denied Appel-lee’s affirmative defenses, the trial court failed to consider the relevant allegations false. Instead, the court permitted Appel-lee to prove up its defenses. This was error. Accordingly, we reverse the final judgment and remand the matter for further proceedings.

Both parties have filed motions in this court seeking an award of appellate attorney’s fees pursuant to section 713.29. We deny Appellee’s motion, and conditionally grant Appellant’s motion should he ultimately prevail below. See Winner FL, LLC v. APAC-Fla., Inc., 869 So.2d 631, 633 (Fla. 5th DCA 2004).

REVERSED and REMANDED.

THOMAS and ROBERTS, JJ., concur.


author: JACOBUS, J.

text:
    Travis EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-443.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2012.

      James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

The appellant, Travis Edwards, appeals the judgment and sentence entered after a jury returned a verdict finding him guilty of first-degree premeditated murder and kidnapping. Edwards raises four points on appeal, contending that the court erred by: (1) permitting Edwards’ defense counsel to waive his right to testify at trial; (2) permitting defense counsel to present an insanity defense over Edwards’ objection; (3) denying Edwards’ motion to discharge his defense counsel as a result of a conflict of interest; and (4) denying Edwards’ pro se request to remove shackles and jail attire before trial. We find that Edwards’ contentions are meritorious, reverse his judgment and sentence, and remand the case for a new trial.

Factual Background

Edwards is a chronic paranoid schizophrenic who began experiencing delusions in his early twenties. He believes, based on revelations from God, that the government and police are corrupt and involved in organized crime. Edwards further believes that because he is aware of the corruption inside the government, his life is in danger and the police have him under constant surveillance. In 1999, his mother initiated guardianship proceedings and, as a result, it was determined that Edwards was incapacitated and a limited guardianship was entered. The court appointed Edwards’ twin brother, Brent, as his guardian and Edwards moved in with Brent and his girlfriend, Karen Muskovitz, at Brent’s home in Melbourne.

In December of 2003, Brent was arrested and taken to the Brevard County Jail, leaving Muskovitz alone with Edwards. As a result of his paranoid condition, Edwards believed Muskovitz was a plant for the mafia and had visions of her hanging a cloth on a laundry line in the house as a signal to a hit squad to initiate an attack on him. When Edwards witnessed Musko-vitz hanging clothes up in the house he believed he had confirmation of his vision and strangled her to death. Sometime after the murder, Brent’s friend, Jerry Dunn, arrived at the house. Edwards believed Dunn was part of the conspiracy against him and took Dunn hostage with a pistol. After an ensuing stand-off with the police, Edwards was taken into custody and later charged with first-degree premeditated murder, kidnapping with a firearm, and possession of a firearm by a convicted felon. Edwards was initially appointed a public defender.

Needless to say Edwards’ competency was an issue throughout the proceedings. After initial competency evaluations in August of 2004, Edwards was declared incompetent to proceed to trial, and transferred to the Florida State Hospital for treatment. After a period of treatment, his treating psychologist believed he was competent to proceed and proposed transferring Edwards back to Brevard County for a competency proceeding. However, before Edwards was transported, the psychologist changed her opinion, concluding that he was no longer competent to proceed. Sometime later, Edwards’ psychologist again felt he was competent to stand trial and no longer met the criteria for continued involuntary commitment. As a result, Edwards was transferred to Bre-vard County, and a competency hearing was held in December of 2005. At that time, he was declared competent to stand trial. Because he was not indigent, Edwards’ professional guardian, who had replaced his brother as guardian, retained private counsel to represent him.

After he was hired, Edwards’ attorney filed a notice of intent to rely on the insanity defense. At a hearing in June of 2008, Edwards requested to address the court and informed the trial judge that he did not wish to pursue the insanity defense and the actions that led to his arrest were a consequence of his fear that Dunn and his “mob boss Dad” were a threat to his life. Edwards further stated that if his attorney insisted upon pursuing the insanity defense, he would request court-appointed counsel since he could no longer afford to hire an attorney. Edwards’ attorney responded that in light of the limited guardianship that was established in 1999, he believed that only the guardian was competent to discharge him, and the guardian did not want him removed from the case. In light of apparent conflict between Edwards and his guardian, the trial judge appointed a guardian ad litem to represent Edwards’ interest in resolving the conflict. Several months after the hearing, Edwards’ criminal defense attorney moved for another competency determination. The court appointed two psychologists to conduct an evaluation. One of the psychologists felt that Edwards was not competent to stand trial. The other believed that he adequately met all the necessary factors to stand trial but still questioned Edwards’ competency to reject an insanity defense or to waive counsel.

In January of 2009, the court held a hearing, where the psychologists, the guardian, and the guardian ad litem all testified. Ultimately, the court entered an order finding Edwards competent to stand trial and denying his motion to discharge counsel. As to Edwards’ capacity to discharge his attorney, the court found that his mental illness deprived him of the ability to analyze the facts and law so as to be able to make decisions concerning counsel. The trial court relied on Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), where the Supreme Court held that a defendant may be competent to stand trial but lack the capacity for self-representation. The trial court also noted that as a result of the limited guardianship, Edwards did not have the ability to contract or terminate a contract with his attorney.

The case proceeded to trial in October of 2009. At the beginning of the trial, Edwards’ attorney advised the court that he wanted Edwards tried in his jail clothes with shackles. When the court asked if Edwards joined in the request, counsel responded that he did not know. Edwards was asked and he informed the court that he wished to wear street clothes, not prison clothing, and asked the court for a ruling on the issue. The court responded that the decision was a strategic one made by counsel and that Edwards had been found to lack the capacity to make a decision regarding the matter. As a result, Edwards was tried in jail attire and shackles.

At the conclusion of the State’s case, the trial court explained to Edwards his right to testify. Edwards’ attorney responded that it was his strategy that Edwards would not testify, that Edwards disagreed with him but that Edwards’ guardian supported the decision, and that it was a decision Edwards was not competent to make. Although Edwards expressed a desire to address the court, his request was denied and ultimately he was not permitted to testify on his own behalf. The jury found Edwards guilty of first-degree murder and kidnapping, and he was sentenced to concurrent life sentences on both counts.

Edwards’ Competency to Stand Trial

Before addressing Edwards’ appellate claims, we note that Edwards’ competency to stand trial in this case appears questionable at best. The United States Supreme Court has long held “that the criminal trial of an incompetent defendant violates due process.” Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (citing Drope v. Missouri, 420 U.S. 162, 172-73, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). The test for determining a defendant’s competency is “whether a criminal defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.’ ” Drope, 420 U.S. at 172, 95 S.Ct. 896 (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Whether a defendant has the necessary rational understanding turns on whether “his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him.” Lafferty v. Cook, 949 F.2d 1546, 1551 (10th Cir.1991). Thus, a defendant may be deemed incompetent, despite an intellectual understanding of the charges against him, if his impaired sense of reality undermines his judgment and prevents him from making rational decisions regarding his defense. See United States v. Hemsi, 901 F.2d 293, 294-96 (2d. Cir.1990) (affirming the defendant’s commitment despite his intellectual understanding of the proceedings against him because his psychiatric disorder and impaired sense of reality prevented him from cooperating rationally with his lawyer).

In this case, Edwards has suffered from paranoid schizophrenia since his early twenties. His competency was questioned on numerous occasions during the pretrial proceedings. When he was ultimately determined competent to stand trial, at least one of his psychologists disagreed. Even the psychologist who felt Edwards was competent remained concerned about Edwards’ ideations and opined that he could testify relevantly only to the extent that the “Why” question was avoided. At trial, Edwards believed that his lawyers, the prosecutors, and the State’s witnesses were all part of a mob conspiracy seeking to cover up the truth and deny him a fair trial. These delusions strongly suggest that Edwards’ perceptions and understandings were not grounded in reality and, thus, he would not meet the Dusky standard regardless of his apparent cognitive ability to communicate with defense counsel or his factual understanding of the trial proceedings in general. However, that being said, Edwards has not challenged the order finding him competent to stand trial and, thus, the issue is not before the court.

Edwards’ Competency to Make Decisions Regarding His Defense

On appeal, Edwards questions whether the trial court applied the correct standard in determining that he was competent to stand trial, but lacked the capacity to exercise certain rights and make decisions regarding his defense. The United States Supreme Court has yet to address the issue of whether a heightened level of competency is required in order for a represented defendant to exercise the rights and make the decisions at issue in this case; however, it has addressed the issue of whether the waiver of certain constitutional rights requires a heightened standard of competency than is required to stand trial. The Court has concluded the same standard should apply in both cases. See Godinez v. Moran, 509 U.S. 389, 395-403,113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (holding the Dusky standard applies to a defendant who decides to waive his right to counsel and plead guilty). Nonetheless, the Court has imposed a higher competency standard where the defendant seeks to conduct his trial defense without representation. See Edwards, 554 U.S. at 174, 128 S.Ct. 2379 (finding that exercising the right to self-representation requires a greater level of mental competence than set by the Dusky standard).

It was the heightened standard of competency from Edwards that the trial court relied on in concluding that while Edwards was competent to stand trial, he was not competent to make decisions regarding: (1) whether to testify; (2) whether to assert the insanity defense; (3) whether to discharge his attorney; and (4) whether to wear jail attire and shackles during trial. The court’s reliance on Edwards was misplaced.

The defendant in Edwards sought to exercise his right of self-representation based on Faretta. The Edwards Court concluded that the Dusky standard was insufficient to evaluate whether a defendant seeking to represent himself at trial is competent to do so. 554 U.S. at 177-78, 128 S.Ct. 2379. In reaching this conclusion, the Court noted that the Dusky standard assumed representation by counsel and emphasized its importance, whereas the Faretta decision was based in part on pre-existing state law which was consistent with a competency limitation on the right to self-representation. Id. at 174-75, 128 S.Ct. 2379. The Edwards Court also recognized that a person with a mental illness who represents himself can wreak havoc on the system and, therefore, provided that a state may adopt a higher level of competency in deciding if a defendant can represent himself at trial. Id. at 175-78, 128 S.Ct. 2379.

In this case, Edwards never requested to represent himself. Instead, he wanted to discharge his lawyers and have a court-appointed lawyer who would abide by his requests to not raise the insanity defense and permit him to tell his story to the jury. The Edwards decision does not require a heightened standard of competency where a represented defendant seeks to exercise the rights or make the decisions that Edwards sought to make in this case. Assuming Edwards was competent to stand trial, we likewise assume that, under Edwards, he was competent to make decisions regarding his defense. Having reached this conclusion, we next consider whether the decisions made by defense counsel in this case are the sort of strategic decisions that may be made by defense counsel regardless of any competency determination or whether they implicate fundamental rights and, thus, must be left ultimately to the defendant.

Counsel’s Waiver of Edwards’ Right to Testify

Florida courts have recognized that the right to testify is a fundamental right. See McCray v. State, 71 So.3d 848, 872 (Fla.2011) (citing Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)); Wilson v. State, 12 So.3d 292, 296 (Fla. 4th DCA 2009) (citations omitted). Further, at least one Florida court appears to have concluded that the decision to testify belongs to the defendant alone. See Wilson, 12 So.3d at 296-97.

In Wilson, the Fourth District Court of Appeal noted that although a defendant who decides to testify may actually decrease his chances of acquittal, this possibility does not diminish his right to make the choice and his attorney may not silence him. Id. at 297. The court further noted that “counsel’s duty is to inform the defendant why he believes [testifying would] be unwise or dangerous,” and if the “defendant insists on testifying, however irrational that insistence might be from a tactical viewpoint, counsel must accede” because the right to testify is personal to the defendant and “may not be waived by counsel as a matter of trial strategy.” Id. (quoting United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984)).

In this case, Edwards made it abundantly clear to the court that he wished to testify. He apprised the court of his wishes on more than one occasion, including after the State rested its case. Nonetheless, the court acceded to his attorney’s strategic decision not to put Edwards on the stand. This was error. Edwards should have been permitted to address the jury as he wished because while defense counsel had the obligation to point out to Edwards the reasons for not testifying, the ultimate decision to testify or not rested with Edwards.

Presenting the Insanity Defense over Edwards’ Objection

The issue of a defense attorney pursuing an insanity defense over his client’s objection has not been directly addressed in Florida. However, the Supreme Court of Delaware faced a similar issue in Cooke v. State, 977 A.2d 803 (Del.2009), which is instructive here.

Cooke was charged with rape, burglary, arson, and two counts of murder. Id. at 812. He was ultimately convicted and sentenced to death. Id. at 839-40. During the course of the proceedings, Cooke’s defense counsel proceeded with a strategy of seeking a verdict of guilty but mentally ill, which is available to a defendant in Delaware. Id. at 812. Cooke was vehemently opposed to that strategy and insisted that he was innocent and not mentally ill. Id. Cooke advised the court on numerous occasions that his lawyers were proceeding in a manner contrary to his wishes and that he wanted to maintain his innocence and tell the jury his story. Id. at 812-32. The trial court held several hearings on the issue and ultimately permitted Cooke’s counsel to proceed to seek a verdict of guilty but mentally ill. Id.

On appeal before the Delaware Supreme Court, Cooke asserted that his lawyers’ insistence of presenting evidence that he was guilty but mentally ill violated his constitutional rights under the Sixth Amendment. Id. at 840. In analyzing this issue, the court first noted that “[t]he Sixth Amendment to the United States Constitution provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defense.’ ” Id. (quoting Amend. VI, U.S. Const.). The court then noted that this right to counsel was the right to effective assistance, that the purpose of this right is to ensure that the trial proceedings are fair, and that counsel had “the authority to manage the day-to-day conduct of the defense.” Id. at 840-41 (footnote omitted). The court further noted that while defense counsel had a duty to consult with his client in regard to “important decisions,” this did not require that counsel obtain the defendant’s approval prior to “every tactical decision.” Id. at 841 (footnote omitted). However, the court went on to say:

[Cjertain decisions regarding the exercise or waiver of basic trial and appellate rights are so personal to the defendant “that they cannot be made for the defendant by a surrogate.” In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), the United States Supreme Court recognized that a criminal defendant has “ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Such choices “implicate inherently personal rights which would call into question the fundamental fairness of the trial if made by anyone other than the defendant.” As to these decisions on the objectives of the representation, a lawyer “must both consult with the defendant and obtain consent to the recommended course of action.” These rights cannot be waived by counsel without the defendant’s fully-informed and publicly-acknowledged consent.

Id. at 841-42 (footnotes omitted). In light of these principles, the court concluded that defense counsel’s pursuit of the guilty but mentally ill verdict “deprived Cooke of his constitutional right to make the fundamental decisions regarding his case.” Id. at 842.

In Florida, our Rules of Professional Conduct provide that an attorney undertaking the representation of his client has a responsibility to abide by his client’s decisions'concerning the objectives of the representation. In a criminal case, the client has the ultimate right to decide whether or not to enter a plea, waive a jury trial, or testify. R. Regulating Fla. Bar 4-1.2(a). Here, although his guardian retained the criminal defense attorney, it was Edwards who was the client. Further, while insanity is an affirmative defense in Florida, the decision to raise the defense is akin to a plea decision. See State v. Tribble, 179 Vt. 235, 892 A.2d 232, 248 (2005) (noting “that Vermont’s procedure for raising an insanity defense is equivalent to a plea of not guilty by reason of insanity”). As such, the decision rests with the defendant alone. See Cooke, 977 A.2d at 842-43 (recognizing that the plea decision is the sort of fundamental decision that must be left to the defendant and asserting the defense of “guilty but mentally ill” over the defendant’s objection effectively negated his choice). By allowing counsel to assert the defense over Edwards’ objections, the trial court was in error and doing so requires a reversal.

The Remaining Issues Raised by Edwards

Because we are reversing for a new trial and Edwards is now indigent, the issue of Edwards’ right to discharge privately retained counsel has become moot. On retrial, Edwards should be appointed a public defender to represent him. However, because the issue of Edwards’ attire during trial may arise again, this court notes that a defendant may not to be compelled to proceed to trial in prison garb over his objection. See Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (“[T]he State cannot ... compel an accused to stand trial before a jury while dressed in identifiable prison clothes.”). Finally, on remand, it is suggested that the trial court revisit the issue of Edwards’ competency.

Edwards’ judgment and sentence are VACATED and this matter is REMANDED to the trial court for a NEW TRIAL.

ORFINGER, C.J. and COHEN, J., concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: ALTENBERND, Judge.

text:
    Analyn MERKLE n/k/a Analyn G. Megison, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3582.
    District Court of Appeal of Florida, Second District.
    May 11, 2012.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Analyn Merkle, now known as Analyn Megison, appeals the judgment and order of probation after a jury convicted her of concealing the location of a minor contrary to a court order in violation of section 787.04(1), Florida Statutes (2007). Although Ms. Merkle may well have been in criminal contempt of court in the dissolution proceeding, the State failed to prove that the court ever issued an order compelling her to disclose the location of her minor son. Accordingly, the trial court erred in failing to grant her motion for judgment of acquittal.

Ms. Merkle had a turbulent two-year marriage to Michael Merkle between 2006 and 2008, during which she gave birth to their son. In 2007, she repeatedly made claims that Mr. Merkle was abusing her daughter from a prior marriage and their infant son. Investigations did not confirm these serious allegations, but Ms. Merkle clearly continued to believe that she and her children were victims of abuse. Although a precise date was not established at trial, Ms. Merkle left Florida with the children and settled in Maryland, assisted by an organization dedicated to protecting victims of violence. She did not inform her estranged husband of her whereabouts, but Ms. Merkle did register her new address with the Florida Attorney General through an address confidentiality program.

Mr. Merkle apparently filed a dissolution proceeding in December 2007. In January 2008, the circuit court awarded Mr. Merkle primary residential responsibility for the son on a temporary basis, so long as he and the child resided with his mother, Angela Merkle. The order reflects that Ms. Merkle was pro se and did not appear at the hearing. Significantly, although the order entered on January 16, 2008, authorized law enforcement officers to assist Mr. Merkle in taking physical possession of the child, it did not order Ms. Merkle to disclose the location of her son.

Ms. Merkle apparently retained an attorney and quickly filed an emergency motion for the court to stay the order. The trial court held a hearing on the motion on January 31, 2008, which Ms. Merkle and her attorney attended. No transcript of the hearing is in this record. Following the hearing, the court entered an order on February 11, 2008, denying the motion to stay and reconfirming that Mr. Merkle would have primary residential responsibility for the child. The order required Ms. Merkle to “return” the child to Mr. Merkle, but once again it did not order her to disclose the current location of the child.

Ms. Merkle did not obey the order. Mr. Merkle apparently filed a motion for contempt because the trial court entered a third order on March 27, 2008, holding Ms. Merkle in willful contempt and ordering law enforcement to take her into custody. Law enforcement found Ms. Merkle and the child in Maryland by mid-April. The State actually filed the information in this case the day before Ms. Merkle was arrested in Maryland, and she was extradited in mid-May.

The information charged Ms. Merkle with violating section 787.04(1), which provides that “[i]t is unlawful for any person, in violation of a court order, to lead, take, entice, or remove a minor beyond the limits of this state, or to conceal the location of a minor, with personal knowledge of the order.” The information alleged that Ms. Merkle “remove[d]” the child from the state in violation of the order finding her in willful contempt or, alternatively, that she “conceal[ed] the location” of the child in violation of the same order. At trial there was a dispute as to whether the State could amend the information to allege that Ms. Merkle had done these actions in violation of any one of the several orders entered in the dissolution proceedings. For purposes of this opinion, we give the State the benefit of all of the orders.

When Ms. Merkle moved for judgment of acquittal at the end of the State’s case, the State conceded that it had not proven that she removed a child in violation of an order. At that point in the proceedings, the State had not proven when Ms. Merkle removed the child from the state. In light of the proceedings following the verdict, it is clear that she fled with the child to Maryland with the assistance of the victims’ advocacy organization before the court entered any of the orders. If a court has not entered an order prohibiting removal of a minor before the child is removed from the state, obviously the State cannot prove that the child was “removed” in violation of a court order.

The State maintained, however, that it had proven that Ms. Merkle had concealed the location of the child in violation of a court order. The trial court allowed the State to present this theory to the jury, and the jury convicted Ms. Merkle of this offense. The trial court entered judgment on this third-degree felony and sentenced Ms. Merkle to five years’ probation.

We conclude that the State did not prove that Ms. Merkle concealed the location of her child in violation of a court order. The problem is that there is no court order expressly telling Ms. Merkle that she was required to disclose the location of this child to the court. If the court order entered as a result of the hearing that she attended in late January had expressly instructed her to disclose to the court the location of her son on or before a specific date in February, we agree that the State could have prosecuted this case as a violation of the statute. But in light of the orders in this record, we conclude that the State did not prove its case.

We are not inclined to believe that this statute is ambiguous in this regard. One cannot “conceal the location” of a child in violation of a court order unless the order requires one to disclose the child’s location. Even if the statute is ambiguous, it must be construed in favor of the defendant. See § 775.021(1), Fla. Stat. (2007).

We believe that our reading of the statute is also consistent with the statutory defense to this crime provided under section 787.04(5). That section provides that “[i]t is a defense under this section that a person who leads, takes, entices, or removes a minor beyond the limits of the state reasonably believes that his or her action was necessary to protect the minor from child abuse as defined in s. 827.03.”

The parties and the court below struggled with the application of this defense because, on its face, it provides a defense only for a person who “leads, takes, entices, or removes” a minor and not for one who “conceals the location” of a minor. § 787.04(5). On first read, this court wondered whether this omission was merely an oversight by the legislature.

This special defense of necessity makes sense if a party reasonably believes that a child will be abused unless the child is physically removed from the presence of the person believed to be the abuser. But there is no reason that a person should have a defense for concealing the location of a child from the court. The child’s location can be disclosed to the court in a manner that does not immediately reveal the child’s location to the potential abuser. Under such circumstances, it becomes incumbent upon the court to take whatever steps may be necessary to protect the child. We note that in this case, for example, although the allegations of abuse may have been unfounded, the court required the child to reside with his grandmother as a safeguard. Thus, a party should logically have no defense to the offense of concealing the location of a child from the court when expressly ordered to disclose the child’s location.

We conclude that Ms. Merkle was entitled to a judgment of acquittal not only on the offense of “removing” the child, but also on the offense of “concealing the location” of the child. We reverse the judgment of conviction and the order of probation and direct the trial court to dismiss this proceeding on remand.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.

      . While some of the facts surrounding Ms. Merkle’s move to Maryland were established at trial, her address registration with the Florida Attorney General was established after trial through documents filed with Ms. Mer-kle’s motion for new trial.

      . Although only a few documents from the dissolution proceedings are in the record before this court, we are able to assume the existence of other documents from references to them in the documents that are in the record.

      .Although not essential to our holding in this case, it is noteworthy that Ms. Merkle appealed the temporary custody order to this court and attempted to obtain a stay of the order in the trial court during the pendency of the appeal.

      . We recognize that in Costlow v. State, 543 So.2d 1259, 1262 (Fla. 5th DCA 1989), the Fifth District held that under section 787.04(1), " '[c]oncealment' " means "concealing a child from a person entitled to its custody.” We do not disagree with the outcome in that case. However, Costlow did not distinguish between concealment of the location of a child from the court and concealment of the location of a child from the other parent. Our analysis of the statute in Ms. Merkle’s case suggests that the statutory offense is actually concealing the location of the child from the court, which admittedly indirectly involves concealing the location of the child from the other parent.


text:
    Willie E. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0917.
    District Court of Appeal of Florida, First District.
    May 14, 2012.
    Willie E. Carter, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.Sd 188 (Fla. 1st DCA 2011).

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Quinton HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0938.
    District Court of Appeal of Florida, First District.
    May 14, 2012.

      Quinton Harris, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

BENTON, C.J., CLARK and MAKAR, JJ., concur.


text:
    Nathaniel A. TOLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2093.
    District Court of Appeal of Florida, First District.
    May 14, 2012.
    Nathaniel A. Toler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, PADOVANO, and MAKAR, JJ., concur.


text:
    Michael CLARKE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2097.
    District Court of Appeal of Florida, First District.
    May 14, 2012.
    Michael Clarke, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.