text:
    Bernard BUGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2652.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Bernard Buggs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(d)(5).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Randall Lamont ROLLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2773.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Randall Lamont Rolle, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    Terry L. MIXON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2817.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Terry L. Mixon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    Christopher Thomas BARR, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6855.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

VAN NORTWICK, ROBERTS, JJ., and DEMPSEY, ANGELA C., Associate Judge, concur.


author: SILBERMAN, Chief Judge.

text:
    Robert H. SHARKEY, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 2D11-4214.
    District Court of Appeal of Florida, Second District.
    June 22, 2012.

      Stephen Hunter Johnson and Joan Carlos Wizel of Lydecker/Diaz, Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Charlyne “Khai” Patterson, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Robert Sharkey, a former candidate for Bonita Springs Fire Commissioner, seeks review of an administrative order finding that Sharkey maliciously made false statements about his opposing candidate during the election campaign. Sharkey admits that he made the false statements but argues that the Administrative Law Judge (ALJ) erred in finding that he acted with actual malice. We agree and reverse.

The issue before the ALJ was whether Sharkey violated section 104.271(2), Florida Statutes (2009), by making false statements about an opposing candidate with actual malice. Sharkey admitted to making false statements about opposing candidate and incumbent Edward Fitzgerald, accusing him of wasting taxpayer money on boondoggles during his tenure on the Fire Commission. Those statements, which Sharkey disseminated by mass email, asserted that Fitzgerald spent taxpayer money to attend a three-week fire education class at Harvard University and an International Fire Prevention Seminar in Paris, France.

In his defense, Sharkey argued that he did not make the statements with actual malice. Sharkey claimed that he reasonably relied on information provided by Alex Grantt, an acquaintance who was a former Fire Commission liaison and current candidate for a different seat on the Fire Commission. Grantt told Sharkey that he learned about Fitzgerald’s boondoggles during his regular attendance at Fire Commission board meetings. In support of this argument, Sharkey testified and presented the corroborating testimony of Grantt. It turned out that Grantt had not been listening attentively enough at the board meetings when the trips to Harvard and Paris were discussed; his information was erroneous.

The ALJ determined that the Florida Elections Commission proved that Shar-key violated section 104.271(2) by clear and convincing evidence. The ALJ made the following findings in support of its conclusion that the Elections Commission proved that Sharkey acted with actual malice, or reckless disregard for the truth:

25. Sharkey acted with reckless disregard when relying solely upon casual conversations with a person with whom he did not have a close relationship — he published an email to over 200 people excoriating his opponent. The allegations are of such a nature that any prudent person would have verified the facts prior to publication, especially if that person was a candidate in the midst of a political campaign.

On appeal, Sharkey argues that the ALJ erred in finding reckless disregard based upon evidence that “any prudent person would have verified the facts prior to publication” because the proper legal standard is subjective, as opposed to objective, and there is no duty to investigate arising from the seriousness of the allegations. We agree.

The Supreme Court has explained that “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Rather, “[tjhere must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Id. That said, a defendant would not be able to “automatically insure a favorable verdict by testifying that he published with a belief that the statements were true.” Id. at 732. Instead, the finder of fact should resolve the issue of whether the statements were made in good faith by evaluating the source of the allegations and the probability of their correctness. The court explained:

Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

Id.

In this case, the ALJ as the finder of fact did not properly apply the pertinent legal standard in considering the evidence and determining whether Sharkey made the statements about Fitzgerald in good faith. Instead of focusing on whether Sharkey had serious doubts about the truth of the allegations, the ALJ focused on the seriousness of the allegations to determine that a reasonably prudent person would have investigated them before publishing. This was error. See id. at 733.

Often when trial courts apply an erroneous legal standard, this court reverses and remands for reconsideration under the proper standard. However, the question of whether the evidence supports a finding of actual malice is a question of law. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). This court must review the full record to determine whether the statements and the context in which they were made support a finding of actual malice. Id. at 688, 109 S.Ct. 2678. And the ALJ’s credibility determinations on the issue will be upheld unless they are clearly erroneous. Id. Because the ALJ has already made its credibility determinations, we are in the same position to review the ALJ’s findings as if the ALJ applied the correct standard.

The facts surrounding Sharkey’s reliance on Grantt’s information are analogous to those in Palm Beach Newspapers, Inc. v. Early, 834 So.2d 50 (Fla. 4th DCA 1976). In Early, a newspaper had published, among other things, a series of articles accusing a school superintendent of nepotism based on the school system’s hiring of his wife. Id. at 53. The articles were based on information furnished by the school board chairman who had erroneously assumed the superintendent had recommended his wife for the position. The Fourth District concluded that this evidence did not support a finding of actual malice but was, “at the most, only proof of defendants’ failure to investigate, which without more, cannot establish reckless disregard for the truth.” Id.

The source of the information in Early, a school board chairman, is comparable to the source in this case, a former Fire Commission liaison and current candidate who regularly attended board meetings. Just as the school board chairman would have knowledge of the school’s hiring practices, Grantt would have knowledge of what was said at the board meetings. Moreover, the ALJ did not consider Grantt to be an unreliable source and did not dispute that Grantt was a regular attendee of Fire Commission board meetings. The substance of the information in Early is also comparable to the substance of the information in this case. Both cases involved facts that would have been known to people in the informants’ positions and were not inherently incredible. As with the evidence in Early, the evidence in this case supported only a failure to investigate, which does not equate to actual malice.

We note that there was some evidence in the record that suggested Sharkey entertained serious doubts as to the truth of the statements. That evidence came from the deposition testimony of Wayne Edsall, a fire commissioner who recollected informing Sharkey that he thought one of Grantt’s allegations was false before Shar-key sent the emails. If the ALJ had relied on this evidence in reaching its conclusion, it would have established actual malice. See, e.g., Harte-Hanks, 491 U.S. at 691, 109 S.Ct. 2678 (holding that evidence supported a finding of actual malice of a newspaper defendant based on the fact that several people had told the defendant the charges were not true and also the fact that the informant’s demeanor when providing the information raised “obvious doubts about her veracity”). However, Edsall’s testimony was plagued by recollection problems, and the ALJ determined that Edsall’s testimony regarding the timing of his conversation with Sharkey, which was contradicted by Sharkey’s testimony on the same issue, was not reliable. The ALJ concluded that it was “impossible to ascertain from the evidence whether Edsall and Sharkey had any meaningful or substantive conversations concerning the alleged Fitzgerald trips, and, if so, when such conversations may have occurred.” Thus, the ALJ did not rely on Edsall’s deposition testimony in coming to its decision. Because the ALJ’s findings on this point are not clearly erroneous, we will not disturb them on appeal. And we reverse because the remaining evidence did not support the ALJ’s finding that Sharkey acted with actual malice.

Reversed.

NORTHCUTT and CRENSHAW, JJ., Concur.


author: WALLACE, Judge.

text:
    Robert GEISSLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-976.
    District Court of Appeal of Florida, Second District.
    June 22, 2012.

      James Marion Moorman, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

A jury found Robert Geissler guilty of three counts of capital sexual battery and one count of lewd or lascivious molestation. On appeal from his judgment and sentences, Mr. Geissler raises five issues; two have merit. We agree with Mr. Geis-sler that the trial court erred in allowing the State to comment on his exercise of the right to remain silent and in allowing the State’s expert witness to vouch for the credibility of the child victim. For these reasons, we reverse the judgment and sentences and remand for a new trial.

I. THE FACTS

Mr. Geissler was fifty-six years old at the time of the trial. During the events pertinent to this case, he was married to Vicki Geissler. The Geisslers lived together in a two-bedroom home in Pasco County-

The victim of Mr. Geissler’s alleged crimes is M.D., who is not related to either Mr. or Mrs. Geissler. However, Mrs. Geissler had known M.D.’s father, S.D., for many years. Initially, M.D. lived with S.D. in West Virginia. Under circumstances that are not explained in our record, the parental rights of M.D.’s parents were apparently terminated in 2005. As a result, M.D. came to Florida to live with Mr. and Mrs. Geissler in December 2005. M.D. was then four years old.

At some point after M.D. began living with the Geisslers, S.D. travelled from West Virginia to Pasco County. S.D. was apparently homeless, and he lived in a tent pitched in various locations. Mrs. Geissler occasionally took M.D. to visit S.D. at his tent. During one of these visits, Mrs. Geissler saw “a stack of magazines” with explicit sexual images in the tent.

From September 2007 until April 2008, Mr. Geissler was employed on a construction project in West Palm Beach. As a result, he was only at home on Saturdays and Sundays. Mrs. Geissler worked on Saturdays, and Mr. Geissler was left alone with M.D. on those days. During this period, M.D. was six years old and was attending the first grade.

On April 19, 2008, a Saturday, M.D. informed Mrs. Geissler about the sexual abuse allegedly perpetrated on her on that day and in the preceding months by Mr. Geissler. An angry confrontation between Mr. and Mrs. Geissler ensued. Mrs. Geissler began packing to leave the house with M.D. At this point, Mr. Geissler went outside the house and shot himself in the chin with a pistol. He was taken to a hospital and ultimately recovered from the gunshot wound.

Mr. Geissler was arrested on July 14, 2008. The lead investigator assigned to the case was Detective Peter Federico of the Pasco County Sheriffs Department. Detective Federico went to the jail soon after Mr. Geissler was arrested in order to conduct an interview. Detective Federico informed Mr. Geissler of his Miranda rights, and Mr. Geissler initially spoke with him. However, Mr. Geissler ultimately invoked his right to remain silent and requested an attorney. At that point, Detective Federico terminated the interrogation.

The State first brought Mr. Geissler to trial on the charges against him in October 2009. The first trial ended in a mistrial after Detective Federico testified before the jury that Mr. Geissler had terminated the postarrest interrogation at the jail by requesting an attorney and declining to say anything further. A second trial was held two months later in December 2009.

At the second trial, M.D. was eight years old. On direct examination by the prosecutor, M.D. described — in detail appropriate for her age — the acts allegedly perpetrated upon her by Mr. Geissler. However, on cross-examination by defense counsel, M.D. contradicted herself and testified that she had fabricated the allegations against Mr. Geissler because she was angry with him for disciplining her and because she wanted to be able to live with her father. On redirect examination, M.D. reversed course once again and testified that her testimony about the abuse had been truthful. The trial court disallowed defense counsel’s attempt to question M.D. further on re-cross-examination.

Mr. Geissler elected to testify in his own defense. He generally denied M.D.’s allegations that he had sexually abused her. He testified to the problems he had experienced in disciplining M.D. in Mrs. Geis-sler’s absence and M.D.’s resentment of him. Mr. Geissler asserted that any touching of M.D. that had occurred on April 19, 2008 — the date of M.D.’s report to Mrs. Geissler — was inadvertent. He claimed that he had shot himself accidentally, not because of any consciousness of guilt. Mr. Geissler admitted that he had been upset at the time, but he attributed his despondency to financial problems and the emotional devastation of watching his wife packing to leave him.

II. THE ISSUES

On appeal, Mr. Geissler raises five issues: (A) the prosecutor’s repeated comments and eliciting of evidence about Mr. Geissler’s postarrest exercise of his right to remain silent; (B) the admission of evidence that Mr. Geissler had shot himself shortly after Mrs. Geissler had confronted him with allegations of child sexual abuse; (C) the trial court’s determination that a licensed psychologist called by the defense as an expert witness did not qualify as an expert; (D) the admission of the testimony of the State’s expert witness vouching for the truth of M.D.’s testimony; and (E) the ruling prohibiting Mr. Geissler from eliciting testimony from M.D. that she knew that S.D. wanted her to live with him. We find reversible error in the first and the fourth issues raised by Mr. Geissler. Although we find no error in the remaining issues, we will discuss each of them briefly because they are likely to recur in a new trial.

III. DISCUSSION

A. Comment on the Exercise of the Right to Remain Silent

The first trial in this case ended in a mistrial after Detective Federico testified before the jury about Mr. Geissler’s post-arrest exercise of his right to remain silent and his request for a lawyer. The same judge presided over the second trial; the prosecutor and Mr. Geissler’s defense counsel also reprised their roles from the first trial. Despite the appearance of the same personnel at the second trial, comment on and testimony about Mr. Geis-sler’s postarrest exercise of his right to remain silent became a feature of the second trial. In fact, the matter was raised on four separate occasions during the one-day trial.

The first reference occurred during the prosecutor’s opening statement. Recounting Detective Federico’s jailhouse interview with Mr. Geissler, the prosecutor mentioned Mr. Geissler’s alleged failure to deny any of M.D.’s allegations as described to him by the detective. The prosecutor then told the jury: “What [Mr. Geissler] actually says is, I can’t say any more because if I do I’ll get in more trouble.” Defense counsel promptly objected to the prosecutor’s comment on Mr. Geissler’s exercise of his Fifth Amendment right to remain silent. Defense counsel also pointed out — to no avail — that such a reference “was the reason why the last trial got mistried, that statement.” As soon as the trial court overruled the objection, the prosecutor emphasized the impermissible reference by repeating it in a slightly altered version: “I don’t want to say any more because if I do, I may get in trouble. I’m not going to deny it.” Defense counsel moved for a mistrial, and the trial court denied the motion.

The second reference occurred during Detective Federico’s testimony. As soon as Detective Federico learned that Mr. Geissler had been arrested, he went to the Pasco County Detention Center to interrogate him. The interview was conducted around 9:30 or 10:00 in the evening. Although Detective Federico’s only purpose in going to the detention center was to interrogate Mr. Geissler concerning M.D.’s allegations, he failed to bring his recording device to the interview. As a result, the interrogation was not recorded.

Detective Federico testified at the trial concerning his jailhouse interview with Mr. Geissler. The detective testified that after he recounted M.D.’s allegations concerning the sexual abuse, Mr. Geissler did not specifically deny them. After this testimony, the following exchange between the prosecutor and Detective Federico occurred:

Q. After he does not deny any of those things, do you tell him in an attempt to get him to talk to you more that there’s other things that you think occurred?
A. Yes, ma’am.
Q. And as a result of that question, does he say anything? Does he make any kind of facial gestures, movements, whatever?
A. At that time he went on to tell me that — he said he does not want to go any further; and if he said more, he would get in more trouble.

(Emphasis added.) Once again, defense counsel objected on the ground that the testimony was a reference to Mr. Geis-sler’s exercise of his right to remain silent and moved for a mistrial. As before, the trial court overruled the objection and denied the motion.

The third reference occurred during the prosecutor’s cross-examination of Mr. Geissler. The prosecutor reminded the jury that Mr. Geissler had exercised his Fifth Amendment right to remain silent with the following question: “And at some point after the detective kept asking you what else happened, you ultimately said that you didn’t want to say anything else because if you do you’re going to get in more trouble, correct?” Once again, defense counsel’s objection was overruled, and Mr. Geissler was forced to acknowledge before the jury that he had exercised his right to refuse to answer any more of Detective Federico’s questions.

The prosecutor returned to the issue a fourth time in the rebuttal portion of her closing statement. Adopting the first person to speak in Mr. Geissler’s voice, the prosecutor said: “I don’t want to go any further. If I say more, I’m going to get into more trouble.” The prosecutor concluded this portion of her rebuttal by telling the jury: “He’s right. If he said more, he probably would [end] up getting in more trouble.”

Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), “comment on an accused’s post-arrest silence is constitutional error.” State v. DiGuilio, 491 So.2d 1129, 1134 (Fla.1986). The Supreme Court of Florida recently addressed the problem of improper testimony and comments that undermine and violate an accused’s right to remain silent as follows:

Unlike some evidentiary errors, such as the admission of a cumulative or irrelevant photograph, a comment on the right to remain silent strikes at the heart of our criminal justice system. This Court has clearly stated that it is constitutional error to penalize an individual for exercising the Fifth Amendment privilege; therefore, the prosecution may not introduce during trial the fact that an individual has relied upon this protection in the face of accusation. See Simpson v. State, 418 So.2d 984, 984-85 (Fla.1982) (quoting Jones v. State, 200 So.2d 574, 576 (Fla. 3d DCA 1967)); see also DiGuilio, 491 So.2d at 1131. As we stated in DiGuilio:
It is clear that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict and that an appellate court, or even the trial court, is likely to find that the comment is harmful under Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ].
491 So.2d at 1136-37. Accordingly, commenting on the silence of an accused is not a viable strategy for obtaining convictions, and any comment—direct or indirect—by anyone at trial on this right is constitutional error that should be avoided. See DiGuilio, 491 So.2d at 1136, 1139.

Ventura v. State, 29 So.3d 1086, 1088-89 (Fla.2010) (alteration in original). “[Cjourts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.” State v. Smith, 573 So.2d 306, 317 (Fla.1990).

Here, the problem we address is not the result of a careless remark by a witness or an isolated prosecutorial comment which is susceptible of more than one interpretation. On the contrary, the prosecutor—through her own comments and the testimony she elicited—hammered the point home again and again throughout Mr. Geissler’s brief trial that he had exercised his right to remain silent during the jailhouse interview conducted by Detective Federico. The trial court consistently overruled defense counsel’s objections and denied his motions for mistrial on account of these comments and testimony. In making these rulings, the trial court erred. See Green v. State, 27 So.3d 731, 735-36 (Fla. 2d DCA 2010).

B. The Admissibility of Evidence that Mr. Geissler Had Shot Himself

We conclude that the trial court did not abuse its discretion in admitting evidence that Mr. Geissler shot himself immediately after being confronted with the claim that he had sexually abused M.D. Like flight, an attempt at suicide may be indicative of a desire to avoid prosecution and is a circumstance from which guilt may be inferred. Penalver v. State, 926 So.2d 1118, 1133-34 (Fla.2006); Walker v. State, 483 So.2d 791, 796 (Fla. 1st DCA 1986). The question of whether the shooting was accidental or an attempted suicide and the significance to be attached to the event are matters to be resolved by the jury. See Walker, 483 So.2d at 796.

C. The Exclusion of the Defense Psychologist

We agree with Mr. Geissler that the trial court improperly concluded that the licensed psychologist called as a witness by the defense did not qualify as an expert. However, we find no reversible error on this point because Mr. Geissler failed to demonstrate how the expert’s proposed testimony could properly be applied to the evidence in this case.

D. Vouching for the Credibility of the Child Victim

On April 23, 2008, Julie Nadkarni examined M.D. at the Child Protection Team (CPT) office in New Port Richey. Ms. Nadkarni is an advanced registered nurse practitioner and medical examiner with the CPT. She has a master’s degree in child health and has conducted thousands of examinations for child sexual abuse during her nine years with the CPT.

Ms. Nadkarni took a history from M.D. and then conducted a complete physical examination of the child. The physical examination—as Ms. Nadkarni had anticipated — disclosed no physical findings supporting the allegation that sexual abuse had occurred. Nevertheless, over timely defense objection, the trial court permitted Ms. Nadkarni to testify as follows:

My impression was that the medical assessment supported the allegation of sexual abuse. The child gave a history of a sexual abuse; however, the physical findings neither supported nor negated an allegation of sexual abuse. Since many types of sexual abuse will leave [no] physical findings on an exam, that the exam shouldn’t be viewed as evidence that the sexual abuse did not take place. But it appears to be a case of sexual abuse without physical findings on the exam.

(Emphasis added.) Because the physical findings on examination of M.D. did not support the allegation of sexual abuse, Ms. Nadkarni’s “impression ... that the medical assessment supported the allegation of sexual abuse” can only have been based on the history of sexual abuse reported by the child. Accordingly, Mr. Geissler argues that Ms. Nadkarni’s testimony impermissi-bly conveyed to the jury her conviction that M.D. was telling the truth about the alleged sexual abuse. We agree.

As a general rule, “it is not proper to allow an expert to vouch for the truthfulness or credibility of a witness.” Frances v. State, 970 So.2d 806, 814 (Fla. 2007) (citing Feller v. State, 687 So.2d 911, 915 (Fla.1994), and State v. Townsend, 685 So.2d 949, 958 (Fla.1994)). The general rule applies to prohibit an expert witness from testifying concerning the truthfulness or credibility of the victim in child sexual abuse cases. Tingle v. State, 536 So.2d 202, 205 (Fla.1988); Weatherford v. State, 561 So.2d 629, 634 (Fla. 1st DCA 1990). Of course, a nurse practitioner such as Ms. Nadkarni may testify to the physical findings observed on examination of a child victim. See State v. Gerry, 855 So.2d 157, 160 (Fla. 5th DCA 2003). It is also proper for such a nurse practitioner to explain why, given the nature of the abuse alleged, physical injury may not be observed on examination. Id.

Even if the expert does not comment directly on the child victim’s credibility, expert testimony is improper if the juxtaposition of the questions propounded to the expert gives the jury the clear impression that the expert believed that the child victim was telling the truth. Hitchcock v. State, 636 So.2d 572, 575 (Fla. 4th DCA 1994); Price v. State, 627 So.2d 64, 66 (Fla. 5th DCA 1993). Here, Ms. Nad-karni did not opine directly on M.D.’s credibility. Nevertheless, Ms. Nadkarni’s testimony concerning her “medical assessment” that sexual abuse had occurred was based entirely on the history of sexual abuse reported by the child. This testimony left the jury with the unmistakable impression that Ms. Nadkarni’s opinion— supported as it was by her impressive credentials — was that M.D.’s account of the sexual abuse was truthful. The admission of this opinion testimony — especially in a case where the child has testified that she fabricated her story about the sexual abuse for an ulterior motive — was error. See Feller v. State, 637 So.2d 911, 915 (Fla.1994).

E. Excluding Testimony About the Child’s Knowledge of her Father’s Wishes

We find no error in the trial court’s ruling prohibiting Mr. Geissler from asking M.D. if she knew that S.D. wanted her to live with him. This question was objectionable because it called for M.D. to speculate concerning S.D.’s state of mind. See Branch v. State, 96 Fla. 307, 118 So. 13, 15 (1928) (“[T]he rule is well established that a witness is not permitted to testify as to the undisclosed intention or motive of a third person.... ”). Moreover, Mr. Geissler was not prejudiced by this ruling because defense counsel successfully elicited an admission from M.D. that she had fabricated her allegations against Mr. Geissler because she wanted to live with her father. Thus the jury was aware that M.D. had a motive to lie about the alleged sexual abuse.

IV. HARMLESS ERROR ANALYSIS

The State asserts that both of the errors discussed above amount to harmless error. We disagree. M.D.’s testimony concerning the alleged abuse was contradictory and inconsistent. The physical examination of M.D. did not result in any findings indicative of sexual abuse. Moreover, the defense established that M.D. had a motive to fabricate her allegations. M.D.’s familiarity with sexual matters at an early age could be explained by her exposure to sexually explicit materials during her visits to S.D. Mr. Geissler denied any contact with M.D. of a sexual nature other than the contact on April 19, 2008, which Mr. Geissler claimed was accidental.

For these reasons, the question of Mr. Geissler’s guilt or innocence turned on a credibility contest between M.D. and Mr. Geissler. The State used Mr. Geissler’s exercise of his right to remain silent to challenge his credibility and to suggest that he was guilty of the alleged sexual abuse. On the other side of the ledger, Ms. Nadkarni’s testimony improperly bolstered M.D.’s credibility. Under these circumstances, the State has not met its burden of showing beyond a reasonable doubt that neither of these errors contributed to the verdicts. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

V. CONCLUSION

For the foregoing reasons, we reverse Mr. Geissler’s judgment and sentences and remand for a new trial.

Reversed and remanded for a new trial.

NORTHCUTT and LaROSE, JJ., Concur.

      . § 794.01 l(2)(a), Fla. Stat. (2006, 2007).

      . § 800.04(5)(b), Fla. Stat. (2006, 2007).

      . In the information, the State alleged that the crimes occurred between April 1, 2007, and April 30, 2008.

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

      . Defense counsel did not object to the prosecutor's final comments on Mr. Geissler’s exercise of his right-to remain silent.


author: EVANDER, J.

text:
    Christopher B. NEGRON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-347.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.

      Christopher B. Negron, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Negron appeals the summary denial of his “Emergency Writ of Habeas Corpus,” which the trial court appropriately treated as a rule 3.800(a) motion to correct illegal sentence. We reverse because the trial judge incorrectly believed that the date a defendant completed boot camp, not the date that he committed his original offense, was the date to use in determining the applicable law when sentencing on a violation of probation under section 958.045, Florida Statutes.

In April 2008, Negron pled guilty to two felony drug offenses. He was sentenced as a youthful offender to concurrent terms of three years incarceration to be followed by one year of probation. After sentencing, the trial court authorized Negron’s participation in the basic training “boot camp” program.

Negron alleged that he successfully completed a boot camp program and was released on probation on March 20, 2009. Thereafter, Negron was found guilty of violating his probation. The trial court imposed concurrent inearcerative sentences of 58.09 months. Negron argues that, pursuant to section 958.045(5)(c), Florida Statutes (2005), the trial court could only sentence him to a maximum of 364 days in jail. If Negron successfully completed the boot camp program, his argument has merit.

Prior to July 1, 2006, section 958.045(5)(c) provided that where a defendant sentenced as a youthful offender subsequently completed the boot camp program, he could only be sentenced thereafter on a violation of probation charge to a sentence that might have originally been imposed as a condition of probation:

(c) The portion of the sentence served prior to placement in the basic training program may not be counted toward program completion. Upon the offender’s completion of the basic training program, the department shall submit a report to the court that describes the offender’s performance. If the offender’s performance has been satisfactory, the court shall issue an order modifying the sentence imposed and placing the offender on probation. The term of probation may include placement in a community residential program. If the offender violates the conditions of probation, the court may revoke probation and impose any sentence that it might have originally imposed as a condition of probation.

(Emphasis added); see Adderly v. State, 958 So.2d 997, 998 (Fla. 5th DCA 2007) (“Prior to this statutory change, a defendant who violated probation after completing boot camp could only be sentenced to 364 days in jail.”).

Effective July 1, 2006, section 958.045(5)(c) was amended to permit a trial court, upon finding that a youthful offender who had successfully completed the boot camp program had thereafter violated probation, to impose any sentence that it might have originally imposed:

(c) The portion of the sentence served prior to placement in the basic training program may not be counted toward program completion. Upon the offender’s completion of the basic training program, the department shall submit a report to the court that describes the offender’s performance. If the offender’s performance has been satisfactory, the court shall issue an order modifying the sentence imposed and placing the offender on probation. The term of probation may include placement in a community residential program. If the offender violates the conditions of probation, the court may revoke probation and impose any sentence that it might have originally imposed.

(Emphasis added).

It is undisputed that Negron’s original offenses occurred prior to July 1, 2006. The application of the aforesaid statutory amendment to offenses committed prior to the amendment’s effective date would violate the constitutional prohibition against ex post facto laws. See Miller v. State, 77 So.3d 888 (Fla. 2d DCA 2012); Morrison v. State, 978 So.2d 284 (Fla. 4th DCA 2008); Adderly.

Therefore, if Negron successfully completed the boot camp program, the maximum sentence he could receive upon his violation of probation was 364 days in jail. Because the trial court did not make a finding as to whether Negron had successfully completed the boot camp program, we remand for resolution of this issue.

REVERSED AND REMANDED.

SAWAYA and TORPY, JJ., concur.

      . Art. I, § 10, Fla. Const. ("No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”)

      . Contrary to the State’s argument, we did not hold otherwise in Davis v. State, 16 So.3d 995 (Fla. 5th DCA 2009). Indeed, in Davis, we cited with approval to Morrison for the proposition that applying the 2006 amendment to a youthful offender sentence upon revocation of probation following successful completion of boot camp would violate the ex post facto clause of the Florida Constitution if the youthful offender had originally been sentenced under the earlier version of the statute. Davis, 16 So.3d at 996.


author: GRIFFIN, J.

text:
    Kenneth CHUKES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2013.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Kenneth Chukes [“Chukes”] appeals an order finding no probable cause to release him from his involuntary civil commitment under the Jimmy Ryce Act. See § 394.918(4), Fla. Stat. (2010). We reverse because Chukes met his burden of proof at the section 394.918(3) limited probable cause hearing, and is entitled to a trial.

Chukes was convicted of a lewd act with a child and attempted sexual battery. This Court affirmed that conviction. Chukes v. State, 641 So.2d 82 (Fla. 5th DCA 1994). Upon completion of his prison term in 2002, the State successfully sought to have Chukes civilly committed under the Involuntary Civil Commitment of Sexually Violent Predators Act, formerly known as the Jimmy Ryce Act (“the Act”), sections 394.910-.32, Florida Statutes. The court found Chukes to be a sexually violent predator and committed him under the Act in 2002. We affirmed that decision as well. Chukes v. State, 840 So.2d 255 (Fla. 5th DCA 2003). By statute, the commitment term will last until such time as his “mental abnormality or personality disorder has so changed that it is safe” for him to be at large. Id.

The Act requires annual mental examinations and annual review hearings for persons committed under it. Specifically, section 394.918(l)-(3), Florida Statutes (2010), provides:

394.918. Examinations; notice; court hearings for release of committed persons; burden of proof.
(1) A person committed under this part shall have an examination of his or her mental condition once every year or more frequently at the court’s discretion. The person may retain or, if the person is indigent and so requests, the court may appoint, a qualified professional to examine the person. Such a professional shall have access to all records concerning the person. The results of the examination shall be provided to the court that committed the person under this part. Upon receipt of the report, the court shall conduct a review of the person’s status.
(2) The department shall provide the person with annual written notice of the person’s right to petition the court for release over the objection of the director of the facility where the person is housed. The notice must contain a waiver of rights. The director of the facility shall forward the notice and waiver form to the court.
(3)The court shall hold a limited hearing to determine whether there is probable cause to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing, but the person is not entitled to be present. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue.

(Emphasis added). Pursuant to section 394.918, the State gave Chukes notice in February 2011 that his annual review was due. Attached to the notice was a report by Dr. Shawn Duffee, a psychologist with the state treatment center, who recommended that Chukes continue treatment at the Florida Civil Commitment Center. Chukes filed a report by a psychologist, Dr. Chris Carr, who recommended that Chukes be released. Dr. Carr opined that Chukes’ mental condition had changed and that it was safe for him to be at large.

On May 24, 2011, the court held Chukes’ 2011 annual limited probable cause review hearing. The court determined that no probable cause existed to believe that Chukes’ condition had so changed that it was safe for him to be at large and that he would not engage in acts of sexual violence if released. The court remarked:

The diagnostic issues in the report and diagnosis, lacks of paraphillia. And the new report appears to be exactly- the same paragraph. Some of the sentences are exactly the same.
But, you know, his diagnosis perhaps might be — might change just a little bit over the — over the period or almost two- and-a-half years, which I — well—two- and-a-half just seems like he’s rehashing his same report.
(Pause)
In his conclusion on the new report, Dr. Carr said, it’s my clear opinion that Mr. Chukes has undergone serious changes as a result of participation in an intensive long-term treatment program. It is my confident opinion that Mr. Chukes is presently safe to be at large in a community.
Well, he doesn’t say which areas he’s undergone changes in or what those changes are. He — he’s certainly in treatment, and he’s in Level III of his treatment and — which he has not completed. And he has not completed Phase IV or a — the treatment. But he doesn’t talk about which aspects of his treatment have been helpful to Mr. Chukes and whether or not he’s still in treatment, or whether or not further treatment as a sexually violent predator is beneficial to Mr. Chukes or not. I think the report is not adequate.
All right. I’ll deny ... this report, and I’ll require that he continues with his current level of treatment.
And the other thing is, if — and it’s really sort of a disservice, I think, to your client. But I think we — the doctors ought to at least refresh these reports. I mean, we should not be paying them to do the same thing that has been done already.
I do think that there’s a problem with Carr’s report, and certainly he’s — he’s not properly serving your client if he doesn’t at least go through the trouble of updating his report. Maybe you ought to think about having a pep talk with them, or looking at someone else. Some of the paragraphs are exactly, I think, the same. And two-and-a-half years to me, it just seems like he ought to — I don’t see that he really — I don’t know that he really knows which— what’s going on with Mr. Chukes that well.

Chukes filed the instant appeal challenging that order.

On appeal, Chukes argues that the court erred in concluding that Dr. Carr’s report does not establish probable cause to believe his condition had changed. He contends that the court’s sole reason — that Dr. Carr’s report was not materially different from the report he submitted for Chukes’ 2009 review — is not supported by the record. Chukes also argues that the trial court applied the wrong rule of law because the trial court did not conduct a genuine review of his status, but instead merely rubber-stamped a previous ruling by a predecessor judge. He maintains that Dr. Carr’s 2011 report does not merely replicate his 2009 report but, instead, contains a significant amount of new information and evaluation and that it was incumbent on the judge to conduct a reasonably searching review of the report and make a determination on its merits.

The State asserts that the 2011 report, like the 2009 report, focuses largely on Dr. Carr’s past conclusions that Chukes does not have qualifying paraphilia and never qualified for commitment as a sexually violent predator. The State further asserts that Dr. Carr’s report does not support his conclusion that Chukes is safe to be discharged, even though he has yet to complete the treatment program. The State claims that the report does not meet the “safe to be at large” standard for release set forth in the statute. See Westerheide v. State, 888 So.2d 702, 706 (Fla. 5th DCA 2004). The State also contends that, absent evidence that Chukes has completed his treatment program, or advanced to the point where treatment is no longer necessary, no substantial basis exists to support a finding of probable cause.

The trial court’s determination of the legal issue of probable cause is subject to a de novo standard of review. State v. Glatzmayer, 789 So.2d 297 (Fla.2001). A judge’s review of the evidence in a section 394.918(3) limited probable cause hearing is similar to an evaluation conducted in response to a motion for directed verdict in that the court must determine the sufficiency of the evidence presented without weighing it and making credibility determinations. See In re Commitment of Allen, 927 So.2d 1070, 1074 (Fla. 2d DCA 2006); Westerheide, 888 So.2d at 706. “[I]f the committed person presents evidence supporting release at a limited probable cause hearing, the trial court considers only that evidence to determine probable cause; it does not weigh the evidence against any ... evidence presented by the State.” Allen, 927 So.2d at 1074. To make the probable cause determination, the court must assume that the petitioner’s evidence is true, and then decide whether there is probable cause to believe that the petitioner’s condition has changed. Westerheide, 888 So.2d at 706. If the petitioner satisfies this burden of proof, then a full trial should be held under section 394.918(4). Allen, 927 So.2d at 1074. The court’s task is not to make a final determination on the conflicting evidence, but rather to determine whether there is sufficient evidence to cause a person of ordinary prudence to conscientiously entertain a reasonable belief that the committed person’s mental abnormality or personality disorder has so changed that the person is safe to be at large. See State v. Robbins, 785 So.2d 620, 621 (Fla. 5th DCA 2001).

In this case, the evidence at the annual review hearing consisted of reports from Dr. Duffee, who performed Chukes’ annual review, and Dr. Carr, an independent examiner. Dr. Duffee’s 2011 report found that Chukes was progressing in his treatment. However, the report found that Chukes would benefit from consistently applying himself toward obtaining his GED. It also found that Chukes would benefit from interventions further aimed at enhancing his ability to make and maintain emotionally close relationships with adults in order to further reduce his risk for sexual reoffending. The report further found that, although Chukes is invested in treatment and has made significant progress, he has yet to fully address relevant treatment issues that are associated with his offending history. The report recommended that Chukes continue treatment at the Florida Civil Commitment Center. Missing from the report was any conclusion that Chukes’ mental abnormality or personality disorder was such that it was likely that he would engage in repeated acts of sexual violence.

Dr. Carr’s 2011 report acknowledged that he has completed prior reviews in the past indicating that Chukes did not meet commitment criteria. The 2011 report updated his status based on the GEO “Treatment Progress Review” dated February 18, 2011. The report concluded that Chukes’ behavior had changed in positive ways, as a result of his participation in the long term, systematic and intensive treatment program. Dr. Carr noted that Chukes had been at the treatment facility for over ten years and staying at the center any longer would likely be unproductive, as there is a danger of becoming institutionalized, but that was not necessary based on his risk. The report concluded that Chukes was unlikely to engage in acts of sexual violence if discharged in the community. His risk was low. Dr. Carr opined that Chukes was safe to be at large in the community, that he no longer met commitment criteria and that he was no longer in need of commitment.

The report continued with an appendix incorporating findings and conclusions from the 2009 report by Dr. Carr. The report noted that Chukes’ charges occurred between the years 1989 to 1992 when he was fourteen to sixteen years old. The report also noted that his offense was not predatory; it was an incest-type of offense where no force was used and no threats were used to keep the victim from talking about the abuse. In the 2011 report, the results of the Static-99 test (an actuarial test used to determine the chances of a person committing a new sexual offense once he or she is released from prison) administered to Chukes reflected he had a “LOW-MODERATE Risk Category.” Dr. Carr suggested that his score was remarkably low and implied very low risk. Dr. Carr commented on the fact that, in 2010, Chukes “passed” an extensive polygraph, which included questions concerning all types of deviant thoughts. Dr. Carr wrote that this information was critical because living for ten years without such deviant sexual thoughts was an indication of positive change. Dr. Carr also commented that the second most powerful predictor of sexually deviant behavior was ongoing antisocial behavior and that Chukes has demonstrated no evidence of ongoing antisocial behavior. Dr. Carr stated that it was his clear opinion that Chukes had undergone serious changes as a result of participation in an intensive long term treatment program. It was also Dr. Carr’s confident opinion that Chukes was presently safe to be at large in the community. Dr. Carr made the following special note:

It is worth noting that this individual was initially evaluated in 1999 when the first evaluations for civil commitment of sexual offenders were done in Florida. This evaluator has completed well over one hundred initial evaluations for DCF and also worked at the FCCC. The general expertise in conducting these evaluations has increased significantly over the years. In addition, the risk instrument used in these evaluations has changed remarkably, resulting in lower predictions of recidivism. In my opinion, this individual would be highly unlikely to be referred for commitment if his initial evaluation occurred at this time. In other words, his risk was never high to begin -with.

In reaching its conclusion that the 2011 report was inadequate, the court found:

In his conclusion on the new report, Dr. Carr said, it’s my clear opinion that Mr. Chukes has undergone serious changes as a result of participation in an intensive long-term treatment program. It is my confident opinion that Mr. Chukes is presently safe to be at large in a community.
Well, he doesn’t say which areas he’s undergone changes in or what those changes are. He — he’s certainly in treatment, and he’s in Level III of his treatment and — which he has not completed. And he has not completed Phase IV or a — the treatment. But he doesn’t talk about which aspects of his treatment have been helpful to Mr. Chukes and whether or not he’s still in treatment, or whether or not further treatment as a sexually violent predator is beneficial to Mr. Chukes or not. I think the report is not adequate.

The trial court focused on the fact that some of the conclusions Dr. Carr reached in 2009 were included within his 2011 report. Although these statements were included in the 2009 report as well, there is no logical reason for Dr. Carr to rewrite his conclusions if his opinion has not changed. The trial court’s suggestion that the 2011 report is merely a rehash of the 2009 report is simply not accurate when they are examined side by side. The 2011 report discusses each of the rationales for his 2011 conclusion. Reviewing the report in the light most favorable to Chukes, he presented sufficient evidence at the limited probable cause hearing, and he was entitled to a full trial pursuant to section 394.918(4).

REVERSED and REMANDED.

ORFINGER, C.J., and EVANDER, J., concur.


text:
    Joshua M. BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-583.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    Dane K. Chase, of Bower Rodriguez, P.A., Tampa, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for ap-pellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that an issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.


text:
    Robert MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2376.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order denying his motion for postconviction relief after an evidentiary hearing. Appellant claimed that his trial counsel should have objected to the introduction of a confession because it had not been disclosed by the State during pretrial discovery. The trial court determined that the State had not committed a discovery violation because it had disclosed the identity of the witness. We conclude that the failure of the State to disclose the existence and substance of the statement was a discovery violation. Accordingly, we reverse and remand this cause for further proceedings.

Appellant was found guilty of three counts of lewd or lascivious molestation of a person twelve years of age or older but less than sixteen years. One of the key pieces of evidence against him was his alleged confession to his step-sister, Ms. Mansfield. From the context of the question at trial, it is obvious that the State was aware of the confession at some point before Ms. Mansfield was called to testify — the prosecutor called her and only asked about the confession. Although the State had disclosed Ms. Mansfield’s identity and defense counsel deposed her, it never disclosed that Appellant had given the confession or its substance. During the hearing on Appellant’s postconviction motion, his former trial counsel admitted that he had not raised the discovery violation because he thought that it was his burden to ferret out the confession during the witness’s deposition. The trial court agreed, concluding that the State had met its burden by disclosing the witness’s identity. This legal conclusion was erroneous. The State has the affirmative duty to disclose the substance of a defendant’s statements pursuant to Florida Rule of Criminal Procedure 3.220. Reese v. State, 694 So.2d 678, 683 (Fla.1997). The burden is not satisfied by merely disclosing the identity of the witness to whom the statement was made. Dawson v. State, 58 So.3d 924, 926 (Fla. 5th DCA 2011).

Our conclusion that a discovery violation occurred and that counsel was ineffective for not raising the discovery violation at trial is not dispositive, however, because Appellant still has the burden to show that counsel’s ineffectiveness probably affected the outcome of his trial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Based upon his erroneous legal conclusion, the trial judge never addressed this Strickland prong, nor has the State asserted the lack of prejudice as a basis for affirming under a tipsy coachman analysis. Indeed, the record is ambiguous on this point, necessitating further labor by the trial court.

REVERSED AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . See Robertson v. State, 829 So.2d 901 (Fla. 2002).


text:
    Laddie Michael CALLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2969.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

MONACO, TORPY and EVANDER, JJ., concur.


text:
    Desirae CARTER, Cedric Butler, Christina Garrett, Shirley Angela McKinney, Mikal Oshay Mitchell, Daniel Paul Divitto, Mandel Arinese Brown, James Roosevelt Little, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-3504, 5D11-3688, 5D11-3786, 5D11-3787, 5D11-3788, 5D11-3789, 5D11-3790, 5D11-3791.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in these cases is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.


text:
    Joseph WILLIAMS, Sharon Graham, Cynthia Jane Colston, Rodney Hill, William Varner, Paul Martin, Ricky Fernandez, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-4014, 5D11-4017, 5D11-4018, 5D11-4019, 5D11-4056, 5D11-4057, 5D11-4147.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

MONACO, TORPY and EVANDER, JJ., concur.


text:
    Terrence ADDERLY, Bianca Dibidad, Sheila Haines, James Lerch, Cassandra Lewis, John Petty, David Rattay, Laquentin Reed, Brandon Reyes, Veronica Aguilera, Scarlet Molina, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-4118, 5D11-4148, 5D11-4149, 5D11-4150, 5D11-4151, 5D11-4153, 5D11-4154, 5D11-4155, 5D11-4156, 5D11-4186, 5D11-4204.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

MONACO, TORPY and EVANDER, JJ., concur.


text:
    Marc HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4239.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

MONACO, TORPY and EVANDER, JJ., concur.


text:
    Dustin Scott HAYNES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-794.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    Dustin Scott Haynes, Crawfordville, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence for violation of probation in case no. 48-04-CF-6498-O/A, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, COHEN and JACOBUS, JJ., concur.


text:
    Todd C. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2066.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    Todd C. Williams, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., GRIFFIN and PALMER, JJ., concur.


text:
    Freddie L. DOWDELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3802.
    District Court of Appeal of Florida, First District.
    June 22, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    Richard DOSS, Appellant, v. MARTIN COUNTY TRAFFIC DIVISION, Appellee.
    No. 4D11-4204.
    District Court of Appeal of Florida, Fourth District.
    June 24, 2012.
    Richard Doss, Jensen Beach, pro se.
    No appearance filed for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

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


author: VAN NORTWICK, J.

text:
    J.B.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4922.
    District Court of Appeal of Florida, First District.
    June 25, 2012.

      Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

J.B.S., a juvenile, appeals a trial court order adjudicating him delinquent and committing him to the Department of Juvenile Justice (DJJ) for placement in a moderate risk facility with post-commitment probation. J.B.S. contends the trial court erred by committing him to a restrictiveness level different than the level recommended by DJJ without complying with the requirements of E.A.R. v. State, 4 So.3d 614 (Fla.2009). After a thorough review of the record, we are satisfied that the trial court did not contravene the requirements of the applicable statutes or E.A.R. in deviating from the recommendation of probation in the predisposition report (PDR) and following DJJ’s subsequent recommendation that a moderate risk placement would be appropriate for J.B.S. Accordingly, we affirm.

J.B.S. pled guilty to lewd and lascivious molestation of a victim less than 12 years old, and false imprisonment of a child and in the process abusing or exploiting the child. The trial court requested DJJ to provide a PDR and set the matter for a hearing. A conference was held with the juvenile probation officer supervisor, the juvenile probation officer, the assistant state attorney and defense counsel in attendance. In the PDR, after noting that J.B.S. had no prior record, DJJ recommended that J.B.S. receive probation and that J.B.S. complete a community treatment program.

At the hearing held on July 19, 2011, the assistant state attorney advised the trial court that the State was not in agreement with the recommendation for probation and was seeking commitment instead. Counsel explained to the court that there was some confusion about the wishes of the victim’s parents. Although the juvenile probation officer believed the victim’s family supported probation, the victim’s father testified that the victim’s encounter with J.B.S. had a devastating effect on his son and, although he did not want J.B.S. to go to jail, he wanted him to be placed in a residential facility. Both the assistant state attorney and the trial court expressed concern that the behavior in this case was not typical inappropriate sexual behavior among children because J.B.S. planned this encounter with the victim and it was not a spontaneous, spur of the moment transgression. The trial court recognized that section 985.475, Florida Statutes (2010), governing juvenile sexual offenders, would apply.

Thereafter, the court determined that J.B.S. should be committed to the DJJ for residential treatment. The court asked DJJ to recommend a restrictiveness level treatment facility. Defense counsel objected to the deviation from the probation recommendation in the PDR, relying upon a rule announced in E.A.R. v. State, that, in applying section 985.433(7)(b), Florida Statutes (2007), the court cannot deviate from the recommendation of DJJ as to the restrictiveness level of a commitment without explaining the reasons for the departure in terms of the characteristics of the imposed restrictiveness level vis-a-vis the rehabilitative needs of the child. 4 So.3d at 616-17. The court disagreed that E.A.R. applied and explained:

[TJhere are appellate cases, which in my view incorrectly treat a court’s determination to commit a defendant when the Department has recommended probation as being subject to the criteria in the E.A.R. v. State decision from the Supreme Court ...
My view is that treating this case or any other where the Department has recommended probation and then which the Court determines to do a commitment as being subject to those appellate rules is mistaken for a couple of reasons, two reasons in this case.
First, the ... ordinary disposition statute, section 985.433 does not support that position. That statute clearly says in subsection (6) that the determination to commit, or not to commit is peculiarly [for] the Court.
[Subsection (6) ] concludes by saying it is the intent of the Legislature that the criteria set forth in this subsection are general guidelines to be followed at the discretion of the court and not mandatory requirements of procedure. It is not the intent of the Legislature to provide for the appeal of the disposition made under this section.
Therefore, my view is that even without looking to the sexual offender’s disposition statute [section 985.475], the decision to commit or not to commit is particularly that of the court and not a recommendation of the Department, which the court can only depart from by going to the rather extraordinary lengths that E.A.R. calls for.
E.A.R. basically says the Court has to describe with reference to the description of the different levels, ... the restrictiveness levels rather of commitment facilities, why one is more suited to a more particular defendant than the other. We may get to that at the next hearing. But that, the whole scheme, which E.A.R. talks about and which E.A.R. interprets ... only makes sense to discuss ... in the context of a recommendation to a restrictiveness level. It doesn’t make sense to discuss it in the context of a decision to commit, or not commit.

After reviewing the provisions of section 985.475, including the requirement that the Department submit a detailed plan pursuant to section 985.475(2)(c), the court expressed doubt “that the section [985J433 criteria [addressed in] E.A.R. [apply].” Nonetheless, the court felt that “section [985.]433 does apply in that I’m still required to get a restrictiveness level recommendation from the Department.” The court advised defense counsel that J.B.S. was not precluded from coming to the next hearing with a plan as described in section 985.475 and arguing for probation rather than commitment.

A multidisciplinary conference was held, after which the juvenile probation officer notified the trial court that DJJ was recommending that J.B.S. be placed in a moderate risk program. The trial court held another hearing on August 11, 2011. At that hearing, Dr. Hodges, a psychologist, testified about an available community-based sexual offender treatment program. He opined that J.B.S. would be a good candidate for this community-based treatment program and that a residential treatment program would not be appropriate for him. The trial court spoke to a commitment manager in Panama City, who explained that she had not been consulted when DJJ made the recommendation of probation in the PDR. It was her recommendation that J.B.S. should attend a residential treatment facility because the act involved was premeditated and J.B.S. had lured the victim to his home. She explained her recommendation, as follows:

I did a lot of reading and looking at it thinking about this young man. And I know that they’re very concerned about his future, but I’m very concerned that if he gets any kind of charge related to something like this again, this boy is going to get waived, if he’s not an adult, he’s going to go to prison. I mean, that’s a big fear for me. Like I said, for his safety, but I’m very concerned with the way that (unintelligible) this was premeditated. I’ve dealt with a lot of sex offenders before ... they weren’t premeditated, it was sort of a spontaneous thing that a kid tried, and that’s not what happened here.

At the conclusion of the hearing, the court rejected J.B.S.’s request for probation, adjudicated him delinquent, and ordered that he be placed in a moderate risk commitment facility.

The Applicable Statutes

Section 985.475(2), governing the adjudication of juvenile sexual offenders, provides in pertinent part:

(2) Following a delinquency adjudicatory hearing under s. 985.35, the court may on its own or upon request by the state or the department and subject to specific appropriation, determine whether a juvenile sexual offender placement is required for the protection of the public and what would be the best approach to address the treatment needs of the juvenile sexual offender.

This statute authorizes the court to order the DJJ “to conduct or arrange an examination to determine whether the juvenile sexual offender is amenable to community-based treatment.” Id. Subsection 2(a) of section 985.475 sets forth the matters the DJJ must include in the report of the examination. This statute requires that this report must “assess the juvenile sexual offender’s amenability to treatment and relative risk to the victim and the community.” § 985.475(2)(b).

Under subsection 2(d) of section 985.475, after the court receives the DJJ report on the proposed plan of treatment, the court must “consider whether the community and the offender will benefit from use of juvenile sexual offender community-based treatment alternative disposition and consider the opinion of the victim or the victim’s family as to whether the offender should receive a community-based treatment alternative disposition under this subsection.” Under subsection 2(i) of the statute, if, after considering the above matters, the court concludes “that the juvenile sexual offender is not amenable to community-based treatment, the court shall proceed with a juvenile sexual offender disposition hearing under s. 985.441.”

Section 985.441, Florida Statutes (2010), provides in pertinent part:

(1) The court that has jurisdiction of an adjudicated delinquent child may, ...
(c)l. Following a delinquency adjudicatory hearing under s. 985.35 and a delinquency disposition hearing under s. 985.433 that results in a commitment determination, the court shall, on its own or upon request by the state or the department, determine whether the protection of the public requires that the child be placed in a program for serious or habitual juvenile offenders and whether the particular needs of the child would be best served by a program for serious or habitual juvenile offenders as provided in s. 985.47. The determination shall be made under ss. 985.47(1) and 985.433(7).
(d) Commit the child to the Department for placement in a program or facility for juvenile sexual offenders in accordance with s. 985.48 subject to a specific appropriation for such a program or facility.

Section 985.433, Florida Statutes (2010), governs disposition hearings in delinquency proceedings. Subsection (6) of this statute provides that: “The first determination to be made by the court is a determination of the suitability or nonsuitability for adjudication and commitment of the child to the department.” The statute mandates that the court’s determination “shall include consideration of the recommendations of the department, which may include a predisposition report.” Subsection (6) and section 985.433, Florida Statutes (2010), set forth in substantial detail the required contents of the PDR and the criteria it must evaluate. Subsection (6) also expressly delegates wide discretion to trial courts in determining whether to commit a child to the DJJ, as follows:

It is the intent of the Legislature that the criteria set forth in this subsection are general guidelines to be followed at the discretion of the court and not mandatory requirements of procedure. It is not the intent of the Legislature to provide for the appeal of the disposition made under this section.

If the court determines to commit a child to the DJJ, subsection (7) of section 985.433 requires that:

... such determination shall be in writing or on the record of the hearing. The determination shall include a specific finding of the reasons for the decision to adjudicate and to commit the child to the department, including any determination that the child was a member of a criminal gang.

Subsection (7)(a) requires the juvenile probation officer to “recommend to the court the most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child.... The court shall consider the department’s recommendation in making its commitment decision.”

Subsection (7)(b) of section 985.433 governs the restrictiveness level at which the court may commit a juvenile to the DJJ. Subsection 7(b) also constrains the authority of the trial court to disregard the restrictiveness level recommended by the DJJ, as follows:

(b) The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department. Any party may appeal the court’s findings resulting in a modified level of restrictiveness under this paragraph.

E.A.R. v. State

At the heart of the E.A.R. decision was the construction to be placed upon section 985.433(7)(b). The Florida Supreme Court described the issue in E.A.R. as follows:

The precise issue at the center of this conflict is whether chapter 985, Florida Statutes (2007), requires juvenile courts to justify departures from the Department of Juvenile Justice’s (“DJJ”) recommended dispositions by explaining a judge’s “reasons” for a departure in terms of the characteristics of the imposed restrictiveness level vis-á-vis the rehabilitative needs of the child (i.e., a utilitarian comparison between (1) the type of custodial confinement that the juvenile will experience, and (2) the most appropriate dispositional services for the child given his or her individual needs and treatment plan).

4 So.3d at 616-17. The court noted that “[f]rom a conceptual standpoint, “disposition” is the phase of a juvenile delinquency proceeding that roughly corresponds to sentencing during a criminal proceed-ing_” Id. at 616 n. 2. However, the court recognized the differences in the two, pointing out that chapter 985 attempts to rehabilitate the child, while the primary purpose of criminal sentencing is to punish the offender. Id.

The court explained the two-step process in sections 985.433(6) and (7) as follows:

The juvenile court’s first responsibility is it to determine whether the child should be adjudicated and committed. See § 985.433(6), Fla. Stat. (2007). In making this decision, the court may consider a nonexclusive list of factors contained in section 985.433(6)(a)-(h). If the court determines that it should adjudicate the child and commit him or her to the custody of the DJJ, it is required to state this determination on the record or in writing. See § 985.433(7), Fla. Stat. (2007). “The determination shall include a specific finding of the reasons for the decision to adjudicate and to commit the child to the Department, including any determination that the child was a member of a criminal street gang.” Id. With regard to the restrictiveness level of any commitment to DJJ custody:
The court shall commit the child to the Department at the restrictiveness level identified or may order placement at a different restrietiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department. Any party may appeal the court’s findings resulting in a modified level of restrictiveness under this paragraph.
§ 985.44(7)(b), Fla. Stat. (2007) (emphasis supplied).

Id. at 624.

E.A.R. concludes by setting forth the steps the trial court must take prior to deviating from a DJJ restrictiveness level recommendation under subsection (7)(b), as follows:

The only rationale or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

Id. at 638.

Thus, before disregarding the DJJ’s recommended restrictiveness level assessment the court must “[identify] significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id. at 634.

Analysis

There are several distinctions between this case and E.A.R. First, in E.A.R., DJJ did not recommend probation, but instead recommended moderate risk residential commitment. It was the trial court’s decision to commit E.A.R. to a high-risk residential program that was the issue in E.A.R., 4 So.3d at 625. Second, the PDR in E.A.R. was more comprehensive than the initial PDR in this case and contained a multidisciplinary assessment culminating in a recommendation of a moderate risk residential commitment. The PDR in this case did not contain any analysis of the classification and placement process nor make a recommendation as to the classification risk for J.B.S.

After reviewing the statutes and the express language of E.A.R., we agree with the trial court that E.A.R. does not apply to the initial determination made under section 985.433(6), which gives the trial court wide discretion in determining the suitability of commitment of the child to the Department. E.A.R. addressed the “precise issue” of the meaning to be accorded subsection (7)(b) of section 985.433. The requirements of subsection (7)(b) do not come into play here, because the trial court did not depart from the restrictiveness level recommended by DJJ. Specifically, the trial court considered the PDR, ordered a further multidisciplinary assessment and, after receiving the recommendation from DJJ as to a restrictiveness level, followed that recommendation.

J.B.S. argues that our recent decision in M.H. v. State, 69 So.3d 325 (Fla. 1st DCA 2011), compels reversal here. We do not agree. In M.H., it is apparent that the recommendation of probation was in connection with a determination of the restrictiveness level under section 985.433(7)(b). Id. at 326. Thus, when “the trial court rejected the recommendation for probation and placed appellant in a moderate risk facility,” id., E.A.R. required the trial court to “engage in a well-reasoned and complete analysis of the PDR and the type of facility to which the trial court intends to send the child.” Id. at 328.

On reviewing the statutory framework of sections 985.433 and 985.475, we are not certain that section 985.433(7)(b) applies to proceedings under section 985.475. We do not have to decide whether section 985.43S(7)(b) applies to a proceeding under section 985.475, however, because the trial court here did not deviate from the restrictiveness level recommended by DJJ. Here, the-juvenile court carefully structured the proceeding as a two-step process in compliance with sections 985.433(6) and (7)(b). The trial court sought and received recommendations from the DJJ and its commitment manager as to a restrictiveness level and followed the revised recommendation of DJJ. The trial court exercised the authority granted to it by chapter 985 in a manner that does not conflict with the Florida Supreme Court’s decision in E.A.R.

AFFIRMED.

DAVIS and PADOVANO, JJ., concur.

      . For example, section 985.441(l)(c), Florida Statutes (2010), applies to a commitment of a juvenile to the DJJ for placement in a program or facility for serious or habitual juvenile offenders. Section 985.441(l)(c)l expressly requires a "delinquency disposition hearing under s. 985.433 that results in a commitment determination” as a condition to the court ordering placement in a program for serious or habitual juvenile offenders. By comparison, section 985.441(d), which gov-eras a commitment to the DJJ for placement in a program or facility for juvenile sexual offenders, makes no reference to a delinquency disposition hearing under section 985.433. Presumably, had the legislature intended to require a trial court to comply with section 985.433(7)(b) in a disposition proceeding under section 985.475, it would have so provided.


text:
    Dontea LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6454.
    District Court of Appeal of Florida, First District.
    June 25, 2012.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appealed revocation of probation and sentence, although the revocation order erroneously reflects that Mr. Lewis admitted to the violation. In fact, the record establishes that the trial court held an evidentiary hearing and found Mr. Lewis guilty of violating the terms of his probation by committing a new crime, as alleged in the amended affidavit with which the revocation proceedings began.

The written revocation order fails to specify which condition(s) of probation Mr. Lewis was found to have violated. Therefore, we remand for the trial court to enter a corrected revocation order reflecting that Mr. Lewis was tried and found guilty of violating probation and specifying the condition(s) of probation violated. See Enno v. State, 59 So.3d 149 (Fla. 1st DCA 2011) (remanding for entry of a corrected revocation order reflecting that the appellant was tried and found guilty of violating community control when the judgment and revocation order erroneously reflected that the appellant admitted the violations); Leggs v. State, 27 So.3d 155, 155 (Fla. 1st DCA 2010) (“In this Anders appeal, we affirm the appellant’s judgment and sentence, but remand for the trial court to enter a written order specifying the conditions of probation the appellant violated.”). As entry of the corrected order is merely a ministerial act on this record, appellant need not be present. See Findley v. State, 63 So.3d 853 (Fla. 1st DCA 2011).

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


text:
    Algier V. BESS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0687.
    District Court of Appeal of Florida, First District.
    June 25, 2012.
    Algier V. Bess, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the October 31, 2011, judgment and sentence, in Madison County Circuit Court case number 07-174-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    Anthony S. SIMPO, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1491.
    District Court of Appeal of Florida, First District.
    June 25, 2012.
    Anthony S. Simpo, 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).

VAN NORTWICK, CLARK, and RAY, JJ., concur.


author: TAYLOR, J.

text:
    Sandra GOLDSTEIN, Appellant, v. Raymond GOLDSTEIN, Appellee.
    No. 4D10-3081.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Robin Bresky of the Law Offices of Robin Bresky, Boca Raton, for appellant.
    John S. Riordian of Riordan & Herman, PL, Boynton Beach, for appellee.
   TAYLOR, J.

Sandra Goldstein, the wife, appeals an amended final judgment of dissolution of marriage. She contends that the trial court abused its discretion in denying her request for attorney’s fees and costs and failing to make findings as to her financial need and the husband’s ability to pay. The wife also argues that the trial court erred in attributing depleted joint marital funds solely to her, because she used the funds for living expenses and there was no finding of misconduct. We agree with appellant on both issues and reverse.

The parties, Raymond and Sandra Gold-stein, were married in 1974 and have three grown children. In February 2009, the husband petitioned for dissolution of marriage. The wife is sixty years old, unemployed, disabled, and receives no retirement benefits. She suffers from stenosis of the neck and receives social security disability income of $1,463.85 per month. The husband is sixty-one years old and is a retired school teacher. He receives a gross monthly pension benefit of $5,380.09. Although he does some odd jobs as a handyman, the trial court found that he does not earn any substantial income on a regular basis from such jobs.

The wife currently lives in the marital home, which has no equity and is “upside down.” The home is worth $62,500, but is encumbered by a mortgage of $119,700. The trial court specifically found that the wife “has had the exclusive use and possession of the marital home since the husband moved out and she has been paying all of the carrying costs on the home without any assistance from the Husband.”

Most of the parties’ net worth consists of the husband’s retirement assets. The equitable distribution schedule lists the marital retirement accounts as being worth $174,212. Prior to the final hearing, the parties agreed to take an advance on equitable distribution by equally dividing about $164,000 worth of retirement assets. The husband has already received his $82,000 share; he used most of it to purchase a new home. The wife had not received her share by the time of trial.

The trial court held a two-day bench trial, for which the wife incurred costs for a court reporter and an accounting expert. Following trial, the court entered a Final Judgment of Dissolution and, later, based on the wife’s motion for rehearing, which was granted in part, entered an Amended Final Judgment of Dissolution.

In the Amended Final Judgment, the trial court considered the statutory factors set out in section 61.08, Florida Statutes, and awarded the wife $1,000 per month in permanent periodic alimony and six months of retroactive alimony. The court found that the parties enjoyed a middle class standard of living during the marriage but noted that “the parties have been spending much more than they were earning and have depleted most assets as a result.” The court further noted that the wife claimed a monthly need of $8,828.60 per month but found that “[t]here is clearly no ability to meet the wife’s total needs as listed in her financial affidavit.” After payment of the alimony award, the husband has a net income of $3,419 per month, which is $1,154 or about 50% more than the wife’s net income of $2,265 per month.

As to equitable distribution, the trial court noted that most of the values were agreed upon by the parties. However, the court attributed the entire value of a Citi CD in the sum of $11,302 to the wife on the Schedule of Couple’s Net Worth (“Schedule”) because the “evidence showed that those funds were actually used by the Wife and the Husband did not receive any of the funds from that account.” It was undisputed at trial that the -wife cashed out the CD for living expenses that the husband ceased paying after he moved out of the marital home.

In the Amended Final Judgment, the trial court denied the wife’s request for attorney’s fees and costs, stating only as follows: “The Court has considered the litigation involved in this case as well as the equitable distribution provided for herein. Each party shall pay their own fees and costs.”

On appeal, the wife contends that the trial court abused its discretion in denying her request for attorney’s fees and costs without analyzing the relevant factors under Rosen v. Rosen, 696 So.2d 697 (Fla. 1997), and providing written findings on these factors. She also argues, on the merits, that the trial court abused its discretion by not awarding her at least a portion of her attorney’s fees and costs.

While the trial court erred in failing to make specific findings on need and ability to pay, we conclude that even if the trial court had made specific written findings, the denial of any award of fees and costs to the wife was an abuse of discretion. Notwithstanding the equal distribution of assets, which resulted in the wife receiving more liquid assets than the husband, the record reflects that there still exists a significant income disparity. The wife has a need for fees and costs, and the husband has a greater ability to pay at least a part of her fees and costs. The trial court thus abused its discretion in failing to award the wife at least a portion of her fees and costs. See Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005) (explaining that the central factors to consider in awarding fees in a dissolution case are “the financial need of the requesting party and the financial ability of the other party to pay”); Cunningham v. Cunningham, 918 So.2d 412, 414-15 (Fla. 2d DCA 2006) (finding that the trial court abused its discretion when it did not require the wife to pay a greater portion of the husband’s attorneys’ fees, based on the same financial disparity that merited an award of permanent periodic alimony to the husband); Hutto v. Hutto, 842 So.2d 994, 997 (Fla. 2d DCA 2003) (holding that the trial court abused its discretion in failing to require the husband to make at least a partial contribution to the wife’s attorney’s fees, even though the parties’ incomes were not “greatly disparate” after the wife received the alimony award); cf. also Wolfe v. Wolfe, 864 So.2d 1229, 1231 (Fla. 4th DCA 2004) (finding no abuse of discretion in awarding attorney’s fees to the wife, where the husband’s income exceeded that of the wife even though the assets were distributed equally between the parties). Accordingly, we reverse and remand with instructions that the trial court award at least a portion of the wife’s attorney’s fees and costs.

The wife also argues on appeal that the trial court erred in attributing the entire $11,302 Citi CD to her, because the CD was a marital asset that was depleted to pay for her reasonable living expenses and there was no finding of misconduct. We have held that “it is error to include in the equitable distribution scheme assets or sums that have been diminished or depleted during the dissolution proceedings unless the depletion was the result of misconduct.” Tillman v. Altunay, 44 So.3d 1201, 1203 (Fla. 4th DCA 2010) (internal quotation marks omitted). Absent a finding of misconduct, where an asset is used by one of the parties out of necessity for reasonable living expenses, that asset should not be assigned to the party who used those funds. Sheehan v. Sheehan, 943 So.2d 818, 822 (Fla. 4th DCA 2006). Further, the misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008); accord Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998). Rather, “to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.” Roth, 973 So.2d at 585.

In this case, the trial court made no such finding of misconduct, nor was there any evidence to support a finding that the depletion was as a result of the wife’s misconduct. In fact, the only evidence at trial was that the wife used those funds to pay bills for living expenses, and the trial court made a specific finding that the wife had been paying “all of the carrying costs on the home without any assistance from the Husband” after the parties separated. Although the husband suggests that the wife’s spending was unreasonable, the record does not support this contention. The divorce was pending for over a year before the final hearing. Given the wife’s modest disability income, her $11,000 expenditure from the Citi CD for household expenses during the pendency of the divorce was not unreasonable. Moreover, even if some of the wife’s expenses were unreasonable, there was no finding of misconduct or intentional dissipation; as explained above, simple mismanagement of marital funds is insufficient. Accordingly, we reverse and remand with directions for the trial court to reduce the wife’s assets on the Schedule by one-half of the value of the Citi account, or $5,651, and thus increase the wife’s equalizing payment by that same amount.

Reversed and Remanded.

STEVENSON and CIKLIN, JJ., concur.

      . We find no merit, however, in the wife’s argument that at least one-half of the costs of the CPA and court reporter hired by the wife should have been designated as the husband's costs on the theory that these costs benefitted both parties equally. These costs were the wife's costs. While reimbursement of a portion of these costs is appropriate, our decision is grounded solely under section 61.16, Florida Statutes. We leave it to the trial court to determine in the first instance the appropriate portion of the costs that the husband should be required to pay.