author: MARSTILLER, J.

text:
    FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES, Petitioner, v. Brenda MONK, Respondent.
    No. 1D11-0870.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Rehearing Denied Sept. 12, 2011.

      Brian C. Keri, Tallahassee, for Petitioner.
    Brant Hargrove, Tallahassee, for Respondent.
   MARSTILLER, J.

The Florida State University Board of Trustees (“FSU”) petitions for a writ of certiorari to review a non-final order of the circuit court denying FSU’s motion to dismiss with prejudice a complaint alleging defamation. We grant the petition and quash the lower court’s order.

In 2007, FSU learned of possible academic misconduct in its Office of Athletic Academic Support Services (“OAAS”), which provides academic assistance to student athletes. FSU undertook an investigation, and thereafter, its chief audit officer issued a report finding there was “considerable testimonial evidence” that a “Learning Specialist” and a tutor within the OAAS “perpetuated academic dishonesty” to a degree which may have violated the academic honor policy of the university. FSU eventually made the report public. Although the report did not name the learning specialist, her identity was quickly discovered. Respondent Brenda Monk is the learning specialist referenced in the report. After release of the report, Ms. Monk resigned from her job at FSU and filed the instant defamation action.

Ms. Monk alleges in her third amended complaint that FSU “improperly caused to be published to the world, the false and/or misleading and defamatory report regarding her work at the University.” The published report is defamatory, she alleges, because it failed to reflect she “was hired to perform the very tasks she was accused of committing as an impropriety,” it cast her in a false light by failing to include all relevant facts, and it was written in such a way “as to lead a reasonable reader ... to conclude that [she] was involved in providing test answers to twenty three (23) unidentified athletes who were ultimately sanctioned” when, in fact, another person had provided the answers. FSU published the report “for an improper purpose even though it knew or should have known that [Ms. Monk] was not involved in providing test answers to the athletes in question.” The improper purpose, Ms. Monk alleges, was to avoid sanctions from the National Collegiate Athletic Association (“NCAA”). Because Ms. Monk was the only learning specialist in FSU’s Athletic Academic Support Services Department, the media easily identified her from the report, and as a result, she alleges, she was defamed. FSU moved to dismiss the complaint with prejudice on the ground that it enjoys absolute immunity from the defamation suit. The trial court denied the motion, finding dismissal premature at this stage in the proceedings. FSU now petitions for a writ of certiorari to challenge that denial.

Threshold Jurisdictional Analysis

Only in limited circumstances is certio-rari the proper remedy to review a non-final order not subject to appeal under the Florida Rules of Appellate Procedure, such as the order denying a motion to dismiss at issue in this case. See Fla. R.App. P. 9.130(8); AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010). Review of such an order is only available by certiora-ri if the petitioner establishes that (1) the trial court departed from the essential requirements of law, (2) the ruling resulted in material injury for the remainder of the case, (3) and the injury cannot be remedied adequately on plenary appeal. Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011); Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004). “The last two elements are jurisdictional and must be analyzed before the court may even consider the first element.” Williams at 1132.

This court has allowed certiorari review under circumstances similar to those presented here because absolute immunity protects a party from having to defend a lawsuit at all, and waiting until final appeal to review an order denying dismissal on immunity grounds renders such immunity meaningless if the lower court denied dismissal in error. See Fuller v. Truncale, 50 So.3d 25, 27-28 (Fla. 1st DCA 2010) (finding petitioner whose motion to dismiss was denied would be irreparably harmed by litigating lawsuit to conclusion because asserted judicial immunity would protect petitioner from suit, and “there would be no way on appeal to redress the harm caused by entangling him in litigation”). Accord Stephens v. Geoghegan, 702 So.2d 517, 522 (Fla. 2d DCA 1997) (“Because of the nature and purpose of a claim of immunity, an appeal after final judgment would not be an adequate remedy. Accordingly, we hold that [the petitioners] have established the requisite material harm, irreparable on appeal after judgment, needed to invoke our certiorari jurisdiction.”). See also Crowder v. Barbati, 987 So.2d 166, 167 (Fla. 4th DCA 2008) (granting certiorari to review an order denying dismissal of defamation complaint where sheriff claimed absolute immunity from suit). We thus grant certiorari review in this case, as well.

Merits Analysis

Once the jurisdictional threshold for certiorari is crossed, a petitioner must demonstrate that the lower court departed from the essential requirements of law. FSU contends that the court did so depart when it refused to dismiss the defamation lawsuit on absolute immunity grounds. “In Florida, ‘[p]ublic officials who make statements within the scope of their duties are absolutely immune from suit for defamation’ ... [and the] absolute privilege protects the statements of all public officials, regardless of the branch of government or the level of the official.” Cassell v. India, 964 So.2d 190, 194 (Fla. 4th DCA 2007) (quoting Stephens v. Geoghegan, 702 So.2d 517, 522 (Fla. 2d DCA 1997)). See also McNayr v. Kelly, 184 So.2d 428 (Fla.1966) (county manager had absolute immunity from libel suit after firing sheriff and supplying county commissioners with a report of the firing). As the Florida Supreme Court explained in Hauser v. Urchisin, 281 So.2d 6 (Fla.1970):

The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged. Under our democratic system the stewardship of public officials is daily observed by the public. It is necessary that free and open explanations of their actions be made.

Id. at 8.

Ms. Monk charges that FSU defamed her when it made public the report of its investigation into alleged academic misconduct in its OAAS. Without question, FSU was acting “in connection with [its] official duties” by investigating possible violations of its academic honor code, see Hauser, 231 So.2d at 8, and the report at issue here was produced by FSU’s chief audit officer in furtherance of his and FSU’s official duties. Releasing the report to the public also falls within FSU’s responsibilities. In McNayr, a sheriff sued his former boss, the county manager, for libel after the county manager fired him and gave the Board of County Commissioners a report explaining the reasons for the firing. 184 So.2d at 430. The sheriff posited that the county manager had acted outside of his official responsibilities because he was not required to provide the report to the Board. Id. The supreme court concluded that providing a report of his actions to the commissioners was “within the orbit of’ the county manager’s responsibilities even though he had “no positive duty” to do so. Id. The court reasoned, “as the appointee of the Board and its chief executive officer, [the county manager] was bound by the very nature of the act itself and the impact on public opinion of discharging a high elective official summarily, to keep the Board advised of his actions and reasons therefor.” In Crowder v. Barbati, 987 So.2d 166 (Fla. 4th DCA 2008), a citizen sued the local sheriff for defamation for issuing a press release naming the citizen and others as “deadbeat dads” for failing to pay court-ordered child support. Id. at 167. The appellate court concluded that providing such information to the media was within the scope of the sheriffs official duties because inducing delinquent parents to pay child support is a proper governmental function. Id. at 168. Similarly, in Mueller v. The Florida Bar, 390 So.2d 449 (Fla. 4th DCA 1980), the court determined that Bar counsel acted within the scope of his authority in disseminating a press release about a disbarred attorney because doing so was “in the interest of the public good....” Id. at 451. Here FSU was confronted with allegations of serious academic misconduct by its student athletes and was duty-bound to investigate the allegations. The nature of the charges, the potential for NCAA sanctions, and the fact that FSU is a public university made release of the investigation report necessary.

Inasmuch as producing and publishing the report were part of its official duties, FSU, an executive branch entity, see section 20.155, Florida Statutes, enjoys absolute immunity from a defamation suit seeking damages for those acts. The trial court therefore departed from the essential requirements of law by denying dismissal of Ms. Monk’s lawsuit. Accordingly, we grant the petition for writ of certiorari, quash the order denying the motion to dismiss Monk’s third amended complaint, and remand the case for further proceedings consistent with this opinion.

Petition for writ of certiorari GRANTED; case REMANDED for further proceedings.

ROBERTS and SWANSON, J.J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sabra Allyson THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2468.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Rehearing Denied Sept. 12, 2011.
    Dean R. LeBoeuf of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Sabra Allyson Thornton appeals her conviction of six counts of theft of funds and property from Okaloosa County, the Okaloosa County Sheriffs Office, and as to one of the counts, from Okaloosa County, the Okaloosa County Sheriffs Office or from former Okaloosa County Sheriff Charles Morris personally. On appeal, Ms. Thornton argues that judgment of acquittal should have been granted because the state failed to produce some evidence which contradicted her reasonable hypothesis of innocence. We agree and reverse and remand for entry of judgment of acquittal on all counts.

While the state does not have to rebut every possible factual variation that might be inferred from the evidence, it does have to produce some competent evidence that contradicts the defendant’s reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 189 (Fla.1989); see also Lord v. State, 667 So.2d 817, 819 (Fla. 1st DCA 1995). In the case at bar, the state failed to do so.

The state argues that Ms. Thornton’s job was a “sham” and thus she committed grand theft by taking funds and property when she had no intention of working for the Sheriffs Office. The record before this Court, however, reflects that Sheriff Morris had the authority to hire Ms. Thornton and she performed all the services requested of her but she was terminated before she could fulfill the primary lobbying duties to which she had been assigned. While Ms. Thornton certainly was not a model employee, evidence of her lethargy and Sheriff Morris’ salacious motives for hiring her, without more, do not render her employment illusory. Stated otherwise, the state produced no competent evidence inconsistent with Ms. Thornton’s reasonable hypothesis of innocence that she believed her employment was genuine and she lacked any intent to commit theft.

Reversed and remanded for entry of judgment of acquittal on all counts.

HAWKES and THOMAS, JJ., and WALKER, MARK E., Associate Judge, concur.


author: TAYLOR, J.

text:
    Jodie C. BELL, Appellant, v. Mitchell K. BELL, Appellee.
    No. 4D10-40.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Rehearing Denied Sept. 21, 2011.

      Robin Bresky of the Law Offices of Robin Bresky, Boca Raton, for appellant.

      Kristen A. Floyd and Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellee.
   TAYLOR, J.

The former wife, Jodie C. Bell, appeals the trial court’s final judgment of dissolution of marriage and the denial of her motion for rehearing. The wife asserts the trial court erred in: (1) calculating the equalization payment by not including the wife’s half of the husband’s accounts receivable from loans he made to Royce and Bell Brothers, Inc.; (2) failing to make factual findings before denying the wife bridge-the-gap alimony; and (3) failing to reserve jurisdiction on the determination of the wife’s attorney’s fees. The former husband, Mitchell K. Bell, filed a cross-appeal as to the court’s final judgment, asserting that the court erred in equitably distributing the equity in the home he inherited from his mother, and in equitably distributing the Ford Explorer, an asset that was disposed of during the dissolution proceedings by the parties’ agreement. We reverse and remand as to all issues, except the wife’s third issue regarding failure to reserve jurisdiction on the determination of attorney’s fees. On this issue, we affirm.

The husband and the wife were married on January 19, 1997. The wife filed a petition for dissolution of marriage on February 28, 2007. Several hearings were held on the dissolution petition in September 2009. Gary Trugman, the wife’s expert C.P.A. and business appraiser, testified that the husband was a fifty-percent owner in both Precision Time Systems, Inc. (“Precision”) and Royce Parking Control Systems (“Royce”). The husband is the CEO and manager of Royce; the husband’s brother, Robert Bell, manages Precision. The valuation date, by stipulation, was February 28, 2007. Trugman testified that as of this date, the husband’s interest in Precision was worth approximately $2,731,000. He testified that the husband’s stock in Royce was worth $647,000. Royce had a negative book value, but still had a positive fair market value.

Richard Briscoe, a C.P.A., testified for the husband. He said that Precision Time Systems, Inc. was started before the parties married, in August 1992; Robert and the husband are fifty-percent owners. Briscoe testified that Bell Brothers, Inc. was set up to hold ownership of Royce’s stock. Royce was purchased in 2001. Bell Brothers held the stock and financed the transaction. Briscoe agreed that “they borrowed money to purchase Royce in which the borrowed money is still outstanding, and so whatever value Royce could have, the other entity, Bell Brothers, Inc., which holds the stock of Royce, must be paid if there was a sale, and therefore, on a net asset sale, the debt would wipe out any gain.”

Regarding equitable distribution, Bris-coe testified that “my value for receivables from Royce are, if you add them together, are roughly $650,000. And then I have a zero value for Royce itself in Bell Brothers. If you look at their schedule, they have zero on the notes, but they have about 670 on Royce.” Briscoe stated that if you take the value of Royce, it has to be in consideration of the debt.

In his valuation of the husband’s assets contained within his Exhibit book, Briscoe showed a Note Receivable Summary, which indicated a Royce Note Receivable equaled $275,283 and a Bell Brothers Note Receivable equaled $385,328. Briscoe testified to these amounts at the hearing as follows:

WEISSMAN [the husband’s counsel]:
... Then what else about notes receivable?
BRISCOE: Notes receivable, there’s a number of different receivables from tax payments that were coming back. Mr. Kridel and I have worked all those out.
I think the largest items there deal with a note receivable from Royce and then a note receivable from Bell Brothers.
WEISSMAN: You need to stop for a moment and kind of explain that to the Court, please.
BRISCOE: Well, the way I valued them, Your Honor, is a net asset value, so since I left the liabilities on the books, then I had to pick up an asset individually-
In their particular instance, they took the liability off the books so they didn’t pick up the asset. That’s the only difference. But actually, when you look at the difference, my value for the receivables from Royce are, if you add them together, are roughly $650,000. And then I have a zero value for Royce itself in Bell Brothers. If you look at their schedule, they have zero on the notes, but they have about 670 on Royce.
So as far as Royce goes, we’re not apart. It’s either in the receivables or it’s in the entity. So that’s really just a few thousand dollars apart on the valuation of Royce as it affects this marital net worth.
* ⅜ *
WEISSMAN: ... I understand how you and Mr. Trugman differed on the valuation. But the receivable notes are assets of [the husband]?
BRISCOE: Individually.
WEISSMAN: Individually?
BRISCOE: Yes.
WEISSMAN: Because they belong to the entity known as Royce?
BRISCOE: They are payables on Royce’s books. And if we could use Royce as Bell Brothers and Royce together-
WEISSMAN: I understand what you’re saying. If you’re going to give a value to Royce, you have to take into consideration the debt?
BRISCOE: Yes.
WEISSMAN: Okay. And if you’re going to say Royce is worthless, which you do, then you still have to take into consideration that Royce has an asset and that assets are the notes?
BRISCOE: They have liability to [the husband] individually.
WEISSMAN: Individually?
BRISCOE: That’s right.
WEISSMAN: And he has to account for that to [the wife]?
BRISCOE: Exactly.
WEISSMAN: And so the way you accounted for it is to put it under “other”? BRISCOE: Yes.
WEISSMAN: I see. Not that you were trying to tell the Court that [the husband] should be forgiven of the monies that were receivable against the value of Royce?
BRISCOE: No. No.
WEISSMAN: Okay.
BRISCOE: If you collapse my value with the notes, it’s very similar to their value with the notes. It just happens— It’s just a different manner of valuing them.
WEISSMAN: Okay. So [the husband] picks up what in receivable notes?
BRISCOE: He picks up from Royce, he picks up $275,283.
WEISSMAN: Yes.
BRISCOE: And from Bell Brothers he picks up $385,328.
WEISSMAN: So we’re not forgetting that fact that there really is an asset out there that [the husband] now has to account to [the wife] for?
BRISCOE: We are not.
WEISSMAN: Okay. Got it.

As to the house the husband inherited from his mother, the husband testified that he made mortgage payments on his mother’s house before she died because she “had Stage IV breast cancer and her earnings were somewhat limited, and being a son, that’s what I was able to do.” The wife knew about these payments and agreed to them. She never indicated that she would seek repayment or any sort of return for these payments made on behalf of the husband’s mother.

Robert Bell testified that when his mother passed away, she willed her house to his brother (the husband) and him. The house was sold for $29,994. The wife testified she did not know if the husband inherited the house and admitted that she had no reason to doubt that the money was an inheritance. Further, Kridel, the wife’s C.P.A., testified that the husband received an inheritance upon his mother’s death, which included the home at issue.

Kridel testified that he used NADA values for the Ford Explorer, but Briscoe did not include the values because it was driven by the husband’s son. Kridel did not know whether the Explorer was purchased by the husband and the wife for the son or if it was purchased by the son, though he did not believe title was in the son’s name. Briscoe testified he does not include the children’s cars, because they are usually gifts to the children.

The husband testified that his son, Jason, had a 2001 Ford Explorer that they bought used; the car was then given to the wife’s son, Josh (the husband’s stepson). Because the car needed major repairs, the husband did not think it was safe; they sold it to Cash for Clunkers and the husband leased Josh another car. The wife needed to sign the title for the husband to do this. This was done three to four months before the hearings.

The court entered its final judgment of dissolution of marriage. The court found that Royce had a zero value and Precision had a value of $630,290, and that the wife was entitled to an equalization payment of $296,352 from the husband. The court made no findings as to the $660,611 in accounts receivables due the husband in its valuation of Royce and Precision. The court denied the wife’s request for alimony and made findings only as to her education, previous employment, the parties’ vocational experts’ testimony, and a possible range of salaries. Regarding the sale proceeds from the husband’s mother’s home, the court accepted the wife’s position that these should be categorized as marital because the mortgage payments were made during the marriage and the proceeds should be equitably distributed. The court also considered the Ford Explorer as marital and belonging to the husband.

The wife first argues that the trial court erred in failing to include the husband’s $660,611 accounts receivable from Royce and Bell in the final judgment equalization chart and in equitably distributing this amount. We agree.

Section 61.075(3), Florida Statutes (2009), provides, in pertinent part, that

(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset.

This statute “requires specific written findings of fact as to identification of non-marital and marital assets, valuation of significant marital assets, designation of which spouse shall be entitled to each asset, and other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities. The distribution of marital assets or liabilities must be supported by factual findings in the judgment based on competent substantial evidence.” Crockett v. Crockett, 708 So.2d 329, 330 (Fla. 1st DCA 1998) (citing § 61.075(3), Fla. Stat. (1995)).

In his valuation of the husband’s assets contained within his Exhibit book, Briscoe showed a Note Receivable Summary, which indicated a Royce Note Receivable equaled $275,283 and a Bell Brothers Note Receivable equaled $385,328, which totaled $660,611. Briscoe agreed that the notes receivables were assets of the husband individually, because they were payables on Royce’s books. Briscoe also agreed that the husband has to account for this money to the wife. However, in the final judgment, the trial court made no mention of the $660,611 notes receivable in its findings regarding the value of Royce and Bell Brothers. This was error.

In Crockett, the former husband appealed the trial court’s final judgment that failed to make any findings concerning a loan the former wife made to her son before filing the petition for dissolution of marriage. 708 So.2d at 330. The first district held that “[although the loan was made prior to the filing of the petition for dissolution, the amount receivable would still be a marital asset subject to equitable distribution.” Id. The court further found that the reason for the trial court’s failure to mention this loan or include this loan was not clear from the record. Id. It held that “[bjecause the loan might represent significant marital assets and was made only the month before the filing of the petition for dissolution, we remand the case for the trial court to make specific written findings regarding the loan and, if appropriate, to consider the loan in a refashioned equitable distribution.” Id. at 331. See also Rosenfeld v. Rosenfeld, 597 So.2d 835, 838 (Fla. 3d DCA 1992) (indicating that a loan that would eventually be repaid can be a marital asset, subject to equitable distribution).

Briscoe, in his testimony concerning this $660,611 in receivable notes, conceded that the husband had to account to the wife for these assets. Briscoe further testified that this was different than the actual valuation of Royce and Bell Brothers, which was zero. Briscoe agreed that the husband will ultimately receive $660,611 from Royce and Bell Brothers in payment of the receivable notes. The husband also agreed he owed the wife this money and that the $660,611 should be included in the equitable distribution chart. Accordingly, the final judgment should be reversed and remanded for the court to make specific written findings regarding these assets.

The wife next asserts that the trial court erred by not awarding her bridge-the-gap alimony and by failing to make the requisite factual findings supporting its decision. Without commenting on whether the court erred in denying bridge-the-gap alimony, we agree that the court failed to make the appropriate findings and reverse and remand on that point alone.

“ ‘The standard of review with respect to the award of alimony is whether the trial judge abused his discretion.’ ” Kareff v. Kareff 943 So.2d 890, 893 (Fla. 4th DCA 2006) (quoting Vandergriff v. Vandergriff, 456 So.2d 464, 466 (Fla.1984)). “A trial court’s decision with regards to the award of alimony is reversible only upon a showing that no reasonable person could arrive at such a result.” Geddes v. Geddes, 530 So.2d 1011, 1016 (Fla. 4th DCA 1988) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). Further, section 61.08(2) lists the factors the trial court “shall consider” in determining whether a party is entitled to alimony; section 61.08(1) requires the court to include findings of fact relative to these factors. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003). “A failure to consider all of the mandated factors is reversible error.” Id.

The parties were married for ten years; their marriage is thus considered a “gray-area” marriage. See e.g. Nichols v. Nichols, 907 So.2d 620, 622 (Fla. 4th DCA 2005) (14-year marriage falls within “gray area”); Byers v. Byers, 910 So.2d 336, 343 (Fla. 4th DCA 2005) (13-year marriage falls within “grey area”); Wofford v. Wofford, 20 So.3d 470, 474 (Fla. 4th DCA 2009) (11-year marriage falls within “gray area”). But see Jaffy v. Jaffy, 965 So.2d 825, 828 (Fla. 4th DCA 2007) (holding marriage just under 10 years short-term). For a marriage that falls within the “gray area” of length, “no presumption in favor of or against an award of alimony exists.” Ryan v. Ryan, 927 So.2d 109, 112 (Fla. 4th DCA 2006) (citing Nichols, 907 So.2d at 622). In such a case, the court has discretion to award alimony based on the statutory factors; failure to consider these factors requires reversal. Id. (citations omitted).

We explained that “ ‘bridge-the-gap’ alimony is intended to smooth the transition between a higher standard of marital living and the standard that a spouse can provide for herself, and typically awarded for a very short period of time, such as in the instant case of just over a year of monthly payments. It is meant for situations where the court finds that permanent alimony is not appropriate, and where no rehabilitation is requested or needed, as in this case where the wife presented no rehabilitative plan at trial.” Robbie v. Robbie, 726 So.2d 817, 820 n. 2 (Fla. 4th DCA 1999) (internal citations omitted). Moreover, “ ‘bridge-the-gap alimony is, by definition, designed to “aid the recipient spouse in making the transition from married life to being single.” It should be used to assist a spouse with legitimate, identifiable, short-term needs under such circumstances in which an award is reasonable and the other spouse has the ability to pay. Bridge-the-gap alimony is most appropriately awarded in instances where the receiving spouse is already employed, possesses adequate employment skills, and requires no further rehabilitation other than a brief time to ease the transition to single life.’ ” Cohen v. Cohen, 39 So.3d 403, 406 (Fla. 4th DCA 2010) (citations omitted).

Section 61.08, Florida Statutes (2009), sets forth the requirements for awarding or denying alimony. The trial court “shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” § 61.08(1). To determine an award of alimony, the court shall consider the following:

(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.

Here, the trial court made sufficient findings as to some of the factors in the final judgment. For example, the court found that the parties were married in January 1997, that the wife filed her petition for dissolution in February 2007, that the wife was 49 years old, and that the husband was 52 years old. The court included the financial resources of the parties in the final judgment and illustrated such findings in the equitable distribution chart. However, the court failed to address the other statutory factors: (1) the standard of living of the parties established during the marriage; (2) the emotional and physical condition of the parties; (3) the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment; and (4) the contribution of each party to the marriage.

We have held that the standard-of-living factor is not a “super factor trumping all other factors in awarding alimony.” Jaffy, 965 So.2d at 828. However, the trial court must still consider it pursuant to section 61.08(2)(a). The trial court concluded that the wife was employable, but failed to articulate any facts regarding her physical or emotional well-being.

As to the “the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment,” the court found that the wife had a degree from the University of Syracuse, that she worked previously in property management, and that if she obtained the appropriate licenses, she would be employable. However, the court made no findings as to how long it would take the wife to become employable in such a capacity. Finally, the court failed to make any findings as to “[t]he contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party,” and did not sufficiently set forth the sources of income available to the parties. Overlooking or omitting these statutory factors in the final judgment of dissolution requires reversal and remand for the appropriate findings. Ryan, 927 So.2d at 112.

The husband cross-appeals the trial court’s final judgment of dissolution, asserting that the court erred by equitably distributing the equity in his mother’s home, which was an inheritance, and by allotting the value of the Ford Explorer to him. We agree.

“ ‘The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.’ ” Bardowell v. Bardowell, 975 So.2d 628, 629 (Fla. 4th DCA 2008) (quoting Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003)). However, “[a] trial court’s legal conclusion that an asset is marital or non-marital is subject to de novo review.” Mondello v. Torres, 47 So.3d 389, 392 (Fla. 4th DCA 2010) (citations omitted).

The trial court, in its final judgment, found that the husband and wife, during the marriage, gave the husband’s mother money for support and for her mortgage. Upon her death, the mother left her home to the husband and his brother, Robert. The home was thereafter sold in April 2007 (after the petition for dissolution was filed), and the husband received $29,975, his portion of the sale proceeds. The wife argued that this should be equitably distributed because the mortgage payments were made during the marriage, while the husband asserted that the money paid to the mother during her life was a gift and the property was not marital. The court accepted the wife’s position, categorized the $29,975 as marital, and equitably distributed it. This was error.

Section 61.075(6)(b), Florida Statutes (2009), sets forth “nonmarital assets and liabilities,” which includes “2. Assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.” Robert Bell testified that when his mother passed away, she willed her house to both him and the husband. The wife testified she did not know if the husband inherited the house and admitted that she had no reason to disbelieve that the money was an inheritance. Further, Kridel, the wife’s C.P.A., testified that the husband received an inheritance upon his mother’s death, which included the home at issue. Therefore, based on the facts adduced at trial, the house was nonmarital, an asset acquired by bequest or devise.

Further, any asset acquired in exchange for an asset from a bequest or devise is nonmarital. § 61.075(6)(b)2. Here, the house was sold and the husband received his half of the proceeds, equaling $29,975. Therefore, this amount should also have been classified as nonmarital.

The evidence adduced at trial showed that the husband, with the wife’s knowledge and acquiescence, gave money to his mother for support and to help her pay her mortgage. There was no evidence that this was not meant as a gift to the mother or that either party intended to be repaid. Kridel, when asked if the husband made a gift of this money to his mother, testified that he did not know what the intention was, but that the wife never said this was an investment property or that they would get something out of the house. The wife agreed on cross-examination that the husband paid these mortgage payments with the wife’s knowledge. Further, the husband testified that he did what he could to help his mother as a son, that the wife knew about and agreed to the payments, and that the wife never indicated that she would seek restitution for these payments made on behalf of the husband’s mother.

Therefore, the trial court erred in finding the $29,975 to be marital property and dividing it in the equitable distribution schedule. The money, which was acquired in exchange for the asset received through a bequest or devise, never lost its status as such. There was no evidence that this was meant to be a loan or that it was meant to be repaid. Thus, the trial court erred in classifying it as marital.

As to the Ford Explorer, the husband argues that the trial court erred by allotting the value of the Ford Explorer to him, where the evidence showed that the car was traded through Cash for Clunkers and no longer existed at the time of the dissolution. We agree. Kridel gave testimony concerning the value of the Ford Explorer, and the equitable distribution chart listed it as $4,275. Briscoe did not include the car because it belonged to the son. The husband testified that his son first had the Explorer, and then it was given to the wife’s son, Josh. Because the car needed repairs and was no longer safe, they traded it in through Cash for Clunkers. The husband testified this was done three or four months before the hearings, that the wife signed the title to accomplish this, and that the husband leased Josh another car. We find this was sufficient to establish that the value of the car no longer existed at the time of the dissolution of marriage proceedings. As such, the trial court erred in including this amount in the husband’s equitable distribution.

We reverse and remand this case to the trial court for further proceedings consistent with this opinion.

Affirmed in part, Reversed in part and Remanded.

HAZOURI and CONNER, JJ., concur.


author:
SHEPHERD, J.
      SCHWARTZ, Senior Judge

text:
    The STATE of Florida, Appellant, v. Dwight HERRON, Appellee.
    No. 3D10-2538.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 2011.
    Rehearing Denied Sept. 2, 2011.

      Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, Howard K. Blumberg, Assistant Public Defender, and Michael A. Vera and Nicholas A. Reed, Certified Legal Interns, for appellee.
    Before WELLS, C.J., and SHEPHERD, J., and SCHWARTZ, Senior Judge.

       Chief Judge Wells did not participate in oral argument.

   SHEPHERD, J.

The State of Florida appeals an order granting the defendant’s, Dwight Herron, motion to suppress a firearm seized from his person following a traffic stop. We affirm the order of the trial court.

After executing a valid routine traffic stop, Miami-Dade County Police Officer Robert McGrath ordered Herron out of his vehicle, and to place his hands on top of the roof for the purpose of an external pat-down search. After Herron placed his hands on the roof of the vehicle, Officer McGrath observed a bulge on the small of Herron’s back. The pat-down and subsequent search revealed the bulge to be a holster and firearm.

Upon a lawful traffic stop, a police officer may order the driver out of his vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (finding a police officer’s order for the defendant to exit a vehicle to be a de minimis intrusion into the driver’s personal liberty). However, such a stop does not, in and of itself, give rise to a valid reason for a weapons pat-down. See Richardson v. State, 599 So.2d 703, 705 (Fla. 1st DCA 1992). Such a pat-down is authorized only where the officer has a reasonable suspicion to believe the suspect is armed with a dangerous weapon. See § 901.151(5), Fla. Stat. (2009); Richardson, 599 So.2d at 705.

The State argues the pat-down was lawful because Herron appeared “excruciatingly] nervous, fidgety,” could not produce a driver’s license, proof of insurance, or car registration, and appeared to be “looking out the window [for] an avenue of escape.” The State further points out that the officer did not feel comfortable returning to his vehicle to run a DAVID System identification or mug shot system identification of the defendant under the circumstances.

These series of events, either singularly or cumulatively, are insufficient to justify a pat-down when there is no additional articulable suspicion the person is armed with a dangerous weapon. See Ray v. State, 849 So.2d 1222, 1225 (Fla. 4th DCA 2003); Richardson, 599 So.2d at 705. The after-the-fact observation of a bulge on the defendant cannot be used as justification for a pat-down. See Richardson, 599 So.2d at 705. Thus, evidence of Her-ron’s nervousness and Officer McGrath’s hunch that “there was something going on,” before the pat-down, were insufficient to create the requisite reasonable suspicion that Herron was armed with a dangerous weapon. See Coleman v. State, 990 So.2d 1255, 1255 (Fla. 4th DCA 2008).

We affirm the decision of the trial court.

SCHWARTZ, Senior Judge

(specially concurring).

In concurring, I have not overlooked D.N. v. State, 805 So.2d 63 (Fla. 3d DCA 2002), review denied, 819 So.2d 134 (Fla. 2002), in which we held that a police officer conducting a valid traffic stop could properly order a passenger to exit the vehicle and to place his hands where the officer could see them. While the facts of D.N. are certainly close to these, I think they are, nonetheless, decisively distinguishable. This is because the “hand-order” was not only de minimis but was incidental to, and an integral part of, the defendant’s response to the completely appropriate requirement that he get out of the car. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In this case, however, the officer avowedly ordered Herron to “assume the position,” as it were, by placing his hands on the car for the separate and specific purpose of conducting a pat-down for weapons. As the Court says, however, in the absence of a founded suspicion of criminal activity or prior indication that the defendant was armed, the officer had no constitutional authority to do so. See also Davis v. State, 67 So.3d 1125 (Fla. 5th DCA 2011).


author: ORFINGER, C.J. LAWSON, J.,

text:
    Evangelista LOPEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-244.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2011.

      Evangelista Lopez, Wawahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   ORFINGER, C.J.

In his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), Evangelista Lopez alleges that his appellate counsel was ineffective for failing to argue that the standard jury instruction for manslaughter by act given to the jury in his first-degree murder trial constituted fundamental error. We agree and grant Lopez’s petition.

Lopez was charged with first-degree murder. The jury was instructed on that crime, second-degree murder, manslaughter by act and several other lesser offenses. The jury found Lopez guilty of second-degree murder. The offense of second-degree murder is one step removed from the necessarily lesser-included offense of manslaughter. State v. Montgomery, 39 So.3d 252, 259 (Fla.2010). With respect to that lesser offense, the court instructed the jury, in pertinent part, that in order to convict Lopez of manslaughter, the State had to prove that the victim’s death “was intentionally caused by Mr. Lopez.” This instruction corresponded with the then standard jury instruction for manslaughter by act. Lopez did not object to the instruction.

This Court affirmed Lopez’s judgment and sentence on direct appeal. Lopez v. State, 29 So.3d 1135 (Fla. 5th DCA 2010). Although no issue concerning the manslaughter jury instruction was raised in the appeal, six months before the initial brief in Lopez’s direct appeal was filed, the First District Court of Appeal, in Montgomery v. State, 70 So.3d 603, 2009 WL 350624 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), held that the standard manslaughter by act jury instruction, the same instruction given at Lopez’s trial, improperly imposed an additional element of intent to kill and was therefore fundamentally erroneous. No court had previously so held. To the contrary, this Court, in Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987), quashed in part on other grounds, 523 So.2d 152 (Fla.1988), had approved the standard manslaughter by act jury instruction and was the controlling law in this district at the time that counsel filed Lopez’s initial brief. Although the First District’s Montgomery opinion certified conflict with Barton, that conflict was not brought to this Court’s attention in the direct appeal.

To establish a claim of ineffective assistance of appellate counsel, a petitioner must show counsel’s deficient performance and that “the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.” Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla.1985). An appellate court must apply the law at the time of the appeal in determining whether appellate counsel’s performance was deficient. However, we apply current law to determine whether Lopez is entitled to relief. See Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009).

Recently, in Del Valle v. State, 52 So.3d 16 (Fla. 2d DCA 2010), the Second District Court of Appeal reversed Del Valle’s second-degree murder conviction, holding that appellate counsel provided ineffective assistance by failing to argue that the trial court committed fundamental error in giving the jury the then standard jury instruction for manslaughter by act. The Del Valle court acknowledged that its existing precedent, at least inferentially, would have compelled a result contrary to that reached by the First District in Montgomery. See Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007) (en banc). However, because of the conflict, Del Valle would have been able to seek relief in the supreme court and would have been in the pipeline when the supreme court issued Montgomery. Del Valle, 52 So.3d at 18-19. That is the same argument Lopez makes now.

We agree with the reasoning of Del Valle, and find that it is consistent with precedent of this Court. For example, in Granberry v. State, 919 So.2d 699 (Fla. 5th DCA 2006), this Court held that the defendant’s appellate counsel was ineffective for failing to argue that an erroneous jury instruction, given at the defendant’s murder trial, constituted fundamental error, even though there was no objection to the instruction. As in this case, the State argued that the defendant relied on a case that did not have retroactive effect. We found that argument unpersuasive in Granberry, and we find it equally unpersuasive now because “the law at the time of appeal applies when determining whether appellate counsel was ineffective.” 919 So.2d at 701.

We recognize that appellate counsel is not required to anticipate changes in the law. See Walton v. State, 847 So.2d 438 (Fla.2003); Gervasoni v. State, 766 So.2d 478 (Fla. 5th DCA 2000). In Alvord v. State, 396 So.2d 184, 191 (Fla.1981), our supreme court explained that “[t]he ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law.” Still, as we said in Granberry, “there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.” 919 So.2d at 701; see Shabazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007) (holding appellate counsel ineffective for failing to raise favorable cases from other districts in Florida even though controlling law in district in which appeal was heard was unfavorable); Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005) (determining that appellant’s counsel’s failure to request supplemental briefing on favorable appellate decision from other district court constituted ineffective assistance of counsel); Whatley v. State, 679 So.2d 1269 (Fla. 2d DCA 1996) (determining that although issue was not completely settled, counsel was ineffective for failing to cite favorable binding case law from another district in effect at time of pending appeal); McCann v. Moore, 763 So.2d 556 (Fla. 4th DCA 2000) (granting belated appeal as counsel had ample time to call favorable decision from another district to court’s attention, but failed to do so); Ford v. Singletary, 689 So.2d 392 (Fla. 3d DCA 1997) (holding that counsel was ineffective for failing to bring new supreme court decision to court’s attention when it expressly applied to pipeline cases).

In this case, before Lopez’s initial appellate brief was filed, the First District, in Montgomery, certified conflict with this Court’s Barton decision and the supreme court had accepted the matter for review. Lopez’s appellate counsel was tasked with being aware of these matters. Under these circumstances, and for the reasons articulated in Granberry, we conclude that Lopez is entitled to relief. As in Del Valle, we conclude a new appeal would be redundant. Hence, we vacate Lopez’s second-degree murder conviction and remand for a new trial.

REVERSED and REMANDED.

PALMER, J., concurs.

LAWSON, J., concurs specially, with opinion.

LAWSON, J.,

concurring specially.

I reluctantly concur, as I believe that the fundamental error analysis in State v. Montgomery, 39 So.3d 252 (Fla.2010), is flawed — and is needlessly forcing the reversal of perfectly valid second degree murder convictions. See Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011) (Lawson, J., concurring) (explaining why, in my view, an unpreserved error in the instruction one step removed from the crime for which the defendant was convicted should not result in an automatic reversal). We are compounding the problem by extending Montgomery to cases that became final before Montgomery was decided, and where this claimed jury instruction error was never raised as an issue on appeal. Although I agree that this result flows from our prior precedent and from Montgomery itself, if not bound by Montgomery, I would deny relief.

      . The trial court instructed the jury on manslaughter by act only.


author: BENTON, C.J.

text:
    Gregory DOCTOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4531.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Donna A. Gerace, Assistant Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appel-lee.
   BENTON, C.J.

Gregory Doctor appeals his convictions and sentences on fourteen felony counts, raising two points. He contends the trial court should have granted his motion for discharge under Florida Rule of Criminal Procedure 3.191 because the state filed its first formal charges more than 175 days after his arrest for the crimes of which he was convicted. He also contends the trial court should have granted his motion to dismiss because the statute of limitations had run on all counts. Prosecution for a second or third degree felony “must be commenced within 3 years after it is committed.” § 776.16(2)(b), Fla. Stat. (2001). We reverse and remand with directions that he be discharged.

An arrest warrant having issued in Leon County, Mr. Doctor was arrested on November 2, 2005, and booked on sixteen Leon County felonies on November 5, 2005, in Pasco County. See Trainer v. Broome, 666 So.2d 1019, 1020 (Fla. 4th DCA 1996) (holding that “if evidence exists disclosing that an individual was booked into custody for a specific offense, one must presume that the individual was in fact arrested for that offense” (citing Perkins v. State, 457 So.2d 1053, 1055 (Fla. 1st DCA 1984))). A “person is taken into custody ... when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged.” Florida Rule of Criminal Procedure 3.191(d)(1). An arrest may occur, as here, without execution of an arrest warrant.

The speedy trial time continues to run after arrest, even when the state takes no further action. See State v. Williams, 791 So.2d 1088, 1091 (Fla.2001). In the present case on June 14, 2006, some six weeks after the 175-day speedy trial time period expired, the state filed a two-count information. See Florida Rule of Criminal Procedure 3.191(a) (“every person charged with a crime shall be brought to trial ... within 175 days of arrest if the crime charged is a felony”). Nearly six months later, the state filed an amended or supplemental fourteen-count information on December 4, 2006. Both pleadings charged crimes years in the past for which the appellant had been arrested in November of the year before.

If the state had filed charges within 175 days of appellant’s arrest, the state would have been entitled to notice of expiration of speedy trial time and would have had the benefit of the recapture window provided for by Florida Rule of Criminal Procedure 3.191(p)(3). That part of the rule requires a prompt hearing after which the parties may have as much as ten days’ notice of trial:

No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and ... shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Fla. R.Crim. P. 3.191(p)(3). But the state loses the benefit of the recapture provision if it neglects to file charges until after expiration of the 175-day speedy trial period. See Williams, 791 So.2d at 1091 (“[W]e hold that the speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired.”).

In the present case, the state does not dispute that no information was filed until after the 175-day period had run. Separately, the state concedes that the statute of limitations barred trial on at least twelve of the fourteen counts set out in the informations on which appellant was convicted and sentenced.

Accordingly, the convictions and sentences are reversed, and the matter is remanded with directions that the appellant be discharged.

ROBERTS and RAY, JJ., concur.


text:
    Jimmy D. CAPERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3830.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Jimmy D. Capers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Steven MERCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2452.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Steven Mercer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the order denying defendant’s motion for postconviction relief rendered on or about March 2, 2010, in Duval County Circuit Court case number 16-2003-CF-010357-BXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Maranda WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2530.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Maranda Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about December 8, 2009, in Duval County Circuit Court case number 16-2008-CF-014557-CXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent her in the belated appeal authorized by this opinion.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Larry BURRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1958.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.

      Larry Burris, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion for posteonviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of grounds one and three of the appellant’s motion. However, we reverse and remand the denial of ground two for the trial court to attach records conclusively refuting the appellant’s allegations or to conduct an evidentiary hearing.

Following a trial, the appellant was convicted of second-degree grand theft (property valued at $20,000 or more, but less than $100,000) and sentenced to ten years’ imprisonment to be followed by five years on probation. In ground two of his post-conviction motion, the appellant asserts that counsel was ineffective for failing to introduce evidence that the value of the stolen property, a John Deere “front end loader,” was less than $20,000 at the time of the taking. The appellant alleged that a John Deere representative set the value at no more than $16,250 at the time of the taking. Because this Court must treat all unrefuted allegations as true, see Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005) (“When no evidentiary hearing is held [on a motion for postconviction relief,] a mov-ant’s allegations are accepted as true unless they are conclusively refuted by the record”), the appellant has alleged a facially sufficient claim for relief which is not refuted by the record. See Thurman v. State, 892 So.2d 1085 (Fla. 2d DCA 2004).

Accordingly, we AFFIRM the summary denial of grounds one and three of the appellant’s motion, but REVERSE and REMAND the denial of ground two for the court to attach portions of the record conclusively refuting the appellant’s allegations or to hold an evidentiary hearing.

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


text:
    Johnny MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0408.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Johnny Mills, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of ground two without further comment. However, we reverse and remand for the trial court to either attach records refuting the appellant’s facially sufficient allegation that his consecutive habitual violent felony offender (HVFO) sentences for armed robbery and aggravated battery are illegal because the crimes occurred during a single criminal episode, or to grant relief. See Hale v. State, 630 So.2d 521 (Fla.1993) (holding that a trial court may not impose consecutive enhanced sentences for crimes committed during a single criminal episode as such sentences are not permitted by statute).

AFFIRMED in part, REVERSED and REMANDED in part.

BENTON, C.J., ROBERTS, and RAY, JJ., concur.


text:
    Francis Job TRAMEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0118.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    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.

In this Anders appeal, we affirm the appellant’s judgment. However, we vacate the amended or “re-recorded” sentence entered on February 28, 2011, which added minimum mandatory sentences, as the notice of appeal had been filed at the time, thus depriving the trial court of jurisdiction to amend the sentence. See Lauderdale v. State, 968 So.2d 626 (Fla. 2d DCA 2007) (holding that the trial court lacked jurisdiction to amend sentencing documents by adding dangerous sexual felony offender designation and adding to two concurrent sentences of life imprisonment and a 25-year mandatory minimum term, as amendments were made after notice of appeal had been filed and appeal was pending); Smith v. State, 39 So.3d 471, 471 n. 1 (Fla. 1st DCA 2010) (noting that although the discovery of any potential issue following Anders briefing usually requires an appellate court to issue an order which either appoints new counsel or allows present counsel to file a supplemental brief, such an order is not required when it would serve no purpose because the error is evident from the record). We express no opinion at this time as to whether the trial court will have the authority to reimpose the minimum mandatory sentences.

AFFIRMED in part, VACATED in part, and REMANDED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Darell JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5673.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant, and Appellant, pro se.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Darell Johnson appeals the trial court’s revocation of his probation and imposition of a sentence totaling seven years’ imprisonment. The trial court found that Mr. Johnson violated four conditions of his probation, including failing to make restitution payments.

At the hearing, Mr. Johnson testified that he had not made many restitution payments because he was barely surviving on his monthly salary. Mr. Johnson’s probation 'officer testified that Mr. Johnson had not made any restitution payments, but did not testify regarding his ability to do so. While section 948.06(5), Florida Statutes (2007), provides that once the state establishes a probationer’s failure to pay restitution, “it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources” to do so, this court has held this statute “does not ... relieve the trial court of its obligation to make a finding that the probationer has the ability to pay.” Martin v. State, 937 So.2d 714, 716 (Fla. 1st DCA 2006).

Because the trial court did not make a finding that Mr. Johnson had the ability to make restitution payments, we reverse as to this ground for revocation of probation. As it is unclear from the record whether the trial court would have revoked Mr. Johnson’s probation and imposed the same sentence based on the three remaining violations, we reverse the revocation order and remand for further proceedings. See Marzendorfer v. State, 16 So.3d 957, 958 (Fla. 1st DCA 2009).

Reversed and remanded.

BENTON, C.J., LEWIS, and SWANSON, JJ„ concur.


author: GERBER, J.

text:
    STATE of Florida, Appellant, v. Bernard MONTGOMERY, Appellee.
    No. 4D09-4258.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Rehearing Denied Sept. 23, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Bernard Montgomery, Fort Lauderdale, pro se.
   GERBER, J.

The state appeals the circuit court’s discharge of the defendant based on an alleged violation of the defendant’s right to a speedy trial. The state argues that the defendant’s right to a speedy trial was not violated. We agree with the state and reverse.

The record reveals the following time-line of material events, all of which occurred in 2009.

On September 15, the defendant, while incarcerated, delivered a notice of expiration of speedy trial to prison authorities for mailing to the circuit court.

On September 22, the parties appeared for a status hearing. During the hearing, the defendant brought to the circuit court’s attention that he delivered his notice of expiration of speedy trial to prison authorities for mailing on September 15. The in-court clerk checked the file and did not see the notice of expiration in the file. The court, however, announced that it received the notice in that day’s mail. The court immediately held a hearing on the notice. The defendant objected, arguing that the hearing was untimely because the hearing should have occurred no later than five days from the date he delivered the notice of expiration to prison authorities for mailing to the court. Despite the defendant’s objection, the court proceeded with the hearing. After some discussion, the court set the trial for September 28.

On September 23, the parties appeared for trial. After voir dire but before the jury was selected and sworn, the state moved to amend the information to clarify the identity of the alleged victim of one of the crimes charged. The defendant objected. The court first stated that it was going to deny the motion. The court then stated that it was going to take the motion under advisement until the next day. The state requested the court to rule on the motion before the jury was selected “or I have to nol-pros the case and refile it by tomorrow.” The court responded that it was going to select and swear the jury. The state then announced that it was nolle prossing the case.

On September 24, the state filed a new case with the amended information. Later that day, the defendant filed a motion for discharge in the original case. The motion argued that because the defendant delivered his notice of expiration to prison authorities for mailing on September 15, the court had to bring him to trial within ten days, that is, by September 25, or else the court had to discharge him.

On September 29, the court held a hearing on the motion for discharge. During the hearing, the defendant filed an amended motion for discharge in the original case. The amended motion argued that the defendant was entitled to a discharge because the court did not bring the defendant to trial by September 25, and because the state nolle prossed the original case to avoid the effect of the speedy trial rule. In response, the state argued that the court did not have to bring the defendant to trial until October 2, which was ten days after the September 22 hearing on the notice of expiration. The state also argued that it nolle prossed the case not to avoid the speedy trial rule, but because the court would not rule on the motion to amend the information until after the jury was sworn.

The court rejected the state’s arguments and discharged the defendant. The court gave two reasons for its decision. First, the court, citing Ryan v. State, 768 So.2d 19 (Fla. 3d DCA 2000), reasoned that the state could not nolle prosse the case during the recapture period and then re-file the case to avoid the speedy trial rule. Second, the court, without the benefit of a transcript, recalled the state saying at the time of the nolle prosse that the recapture period expired on September 25. According to the court, “[A]s far as I’m concerned I’ll just accept your representation, that it expired on [September 25], and I’ll go with that.” The state contested the court’s recollection. However, the court proceeded with its order and discharged the defendant in the new case.

This appeal followed. The state argues that it was entitled to nolle prosse the case on September 23 and re-file the case with the amended information on September 24 because such action did not violate the speedy trial rule. According to the state, because the court held the hearing on the notice of expiration on September 22, the court had until October 2 to bring the defendant to trial. Our review of this argument is de novo. See State v. Nelson, 26 So.3d 570, 573-74 (Fla.2010) (interpretation of the rules of procedure with regard to the right to a speedy trial is a question of law subject to de novo review).

We agree with the state’s argument. “[Generally it is permissible for the State to refile charges it has nolle prossed, so long as it complies with the applicable statute of limitations and the speedy trial rule.” State v. Hurd, 739 So.2d 1226, 1228 (Fla. 2d DCA 1999). Here, the state complied with the speedy trial rule in four respects.

First, the state was correct in its response to the amended motion for discharge that the recapture period did not expire until October 2. The calculation of the recapture period is set forth in Florida Rule of Criminal Procedure 3.191(p)(3):

No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Applying rule 3.191(p)(3) here, the defendant’s notice of expiration of speedy trial was filed on September 22 and the circuit court held the hearing on the notice on the same day. Therefore, the state had until October 2 to bring the defendant to trial. However, the court discharged the defendant on September 29. That discharge was in error. See State v. Valdez, 44 So.3d 184, 186 (Fla. 2d DCA 2010) (trial court erred in granting defendant’s motion for discharge because on the date the court did so, the recapture period had not expired).

Second, the state’s nolle prosse reasonably could not have misled the defendant into believing that the state had abandoned the charges. See Thompson v. State, 1 So.3d 1107, 1110 (Fla. 4th DCA 2009) (“In petitioner’s case, the state did not mislead him into believing the charges had been abandoned.”). The state said at the time of the nolle prosse that it intended to re-file the case with the amended information the next day. The next day, the state in fact did so.

Third, the state’s amended information did not include any new charge arising from the same criminal episode charged in the original information. See State v. D.A., 939 So.2d 149, 151 (Fla. 5th DCA 2006) (“[WJhere ... the state files an amended information after expiration of the speedy trial period, upon proper motion the court must dismiss any new charge arising from the same criminal episode ... charged in the original information.”) (citations omitted). Instead, the amended information merely clarified the identity of the alleged victim of one of the crimes charged.

Fourth, there is nothing in the record suggesting that the state nolle prossed the case for an improper purpose amounting to a due process violation. Compare Hurd, 739 So.2d at 1228 (due process violation did not occur when the state nolle prossed the case before the jury was sworn because the state’s key witness failed to appear for trial pursuant to his subpoena) with State v. Goodman, 696 So.2d 940, 942 (Fla. 4th DCA 1997) (due process violation occurred when the state nolle prossed the case before the jury was sworn solely to avoid the selected jury). Rather, it appears from this record that the state nolle prossed the case for the legitimate purpose of amending the information to clarify the identity of the alleged victim of one of the crimes charged.

The circuit court’s error in this case appears to have arisen from two sources. First, the court misunderstood that the recapture period expired on September 25. Contrary to the circuit court’s recollection, the state never represented that the recapture period expired on September 25. Rather, after voir dire on September 28, the state requested the court to rule on the motion to amend before the jury was selected “or I have to nol-pros the case and refile it by tomorrow.” We construe the state’s remark as merely informing the court of the state’s intended course of action and not as a reference to the expiration of the recapture period.

Second, the circuit court’s reliance on Ryan was misplaced. In Ryan, the third district held that the defendant was entitled to discharge where the state nolle prossed the case during the recapture period and then re-filed the case after the recapture period expired. 768 So.2d at 20-21. Our sister court reasoned that the state was not permitted to circumvent the speedy trial rule by nolle prossing the case. See State v. Agee, 622 So.2d 473, 475 (Fla.1993) (to allow the state to unilaterally toll the running of the speedy trial period by entering a nolle prosse would eviscerate the rule). Here, however, the state refiled the case before the recapture period expired. As a result, the speedy trial period was never tolled. Thus, the court should have brought the defendant to trial on the amended information within the remaining three days before the recapture period expired. “To hold otherwise frustrates the purpose of the speedy trial rule, thereby rendering it a right to speedy discharge rather than a right to speedy trial.” Nelson, 26 So.3d at 579 (citation omitted).

In response to the state’s argument, the defendant contends that the hearing on his notice of expiration was untimely under rule 3.191(p)(3) because the hearing should have occurred no later than five days from the date he delivered the notice of expiration to prison authorities for mailing to the court. In support, the defendant cites Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), for the proposition that a prisoner’s filing occurs when the prisoner delivers his pleading to prison authorities for forwarding to the court. However, the defendant reads Houston too broadly. In Houston, the United States Supreme Court concluded that a habeas corpus petitioner’s notice of appeal is deemed filed when he delivers it to prison authorities for forwarding to the court. Id. at 270, 108 S.Ct. 2379. The Court did not conclude that every pleading which a prisoner delivers to prison authorities is deemed filed on that date.

We see a clear difference between Houston and this case. In Houston, the Court concluded that a defendant should not bear the risk of missing a filing deadline if prison authorities do not timely forward the defendant’s filing to the court. See id. at 275, 108 S.Ct. 2379 (“[A] pro se prisoner has no choice but to hand his notice over to prison authorities for forwarding to the court clerk.”). In the instant situation, however, the state should not bear the risk of losing the recapture period if prison authorities do not timely forward the defendant’s notice of expiration of speedy trial to the court for filing.

Based on the foregoing, we remand for the circuit court to bring the defendant to trial on the amended information within three days of the issuance of our mandate. The state’s alternative argument for reversal is moot.

Reversed and remanded.

HAZOURI and CONNER, JJ., concur.


author: HAWKES, J.

text:
    Jeffrey RAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4965.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    David W. Collins and Chuck Collins of The Collins Law Firm, Monticello, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Appellant Jeffrey Ray appeals his convictions for felony murder and aggravated child abuse, raising five arguments. We find each of his arguments unpersuasive, except for his claim that he was improperly sentenced on the charge of aggravated child abuse. We write only to address this point.

Following trial, the trial court sentenced Appellant to life imprisonment for the charge of felony murder, a term to run concurrent to a fifteen year sentence for aggravated child abuse. Appellant challenged the sentence for aggravated child abuse in a motion filed pursuant to Florida Rule of Criminal Procedure 8.800(b)(2) (2009). In the motion, he emphasized that the Department of Corrections had added 120 points for “victim injury” to the sentencing scoresheet for the charge of aggravated child abuse. These points were added because of the victim’s “death.” Appellant argued that sentencing points for a capital offense should not be added to the scoresheet for a non-capital offense, and that he should be resentenced under a properly tabulated scoresheet.

The trial court effectively denied Appellant’s motion as it failed to rule on it within 60 days. See Fla. R. Crim. Procedure 8.800(b)(2)(B) (2009) (stating all motions to correct sentencing error pending appeal are governed by subdivision (b)(1)(B); see also Fla. R. Crim. Procedure 3.800(b)(1)(B) (2009) (stating “[i]f no order is filed within 60 days, the motion shall be considered denied”). Appellant filed a motion for rehearing, although the trial court did not rule on this motion either. The trial court’s effective denial of these motions was error.

Motions to correct sentencing errors involve “purely legal issues,” and are therefore reviewed de novo. See Willard v. State, 22 So.3d 864 (Fla. 4th DCA 2009); Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005). Appellant’s motion questioned whether “victim injury” points had been erroneously added to his scoresheet. Florida Rule of Criminal Procedure 3.703(d)(9) states “victim injury” points may be scored for

physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. [ ] Victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims.

The Rule then makes the following statement, which is of critical importance to this issue:

Victim injury resultant from one or more capital felonies before the court for sentencing is not to be included upon any scoresheet prepared for non-capital felonies also pending before the court for sentencing.

(emphasis added); see also Seccia v. State, 786 So.2d 12, 14 (Fla. 1st DCA 2001).

Here, although the 120 points for the victim’s death related to the charge of felony murder — a capital felony — they were included on the scoresheet for the charge of aggravated child abuse — a non-capital felony. Under Rule 3.703(d)(9), this was error and those points should not have been added. Because the record does not conclusively show that the trial court would have rendered the same sentence had the error not occurred, Appellant must be resentenced on this charge.

Accordingly, we AFFIRM Appellant’s convictions, but VACATE the sentence for aggravated child abuse and REMAND for resentencing on this charge.

CLARK and SWANSON, JJ„ concur.


text:
    Susan L. SELLERS, Former Wife, Appellant, v. Timothy M. SELLERS, Former Husband, Appellee.
    No. 1D10-2739.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.

      Mark A. Bednar, Pensacola, for Appellant.
    Michael T. Webster, Shalimar, for Ap-pellee.
   PER CURIAM.

This direct appeal and cross-appeal arise from a final judgment of dissolution of marriage. On direct appeal, the former wife argues the trial court abused its discretion in denying her request for permanent periodic alimony where, among other things, the parties were married almost seventeen years; there is a great disparity in incomes; and she is unable to meet her monthly expenses on her current income. On cross-appeal, the former husband argues the trial court abused its discretion in awarding the former wife his equity in the marital home as there were no special circumstances, justifying an award of lump sum alimony and such an award gave the former wife a substantially greater amount of marital assets. We reverse on both issues as they are interrelated.

Facts

At the time the ease was filed, the parties had been married approximately sixteen years and eight months and had two minor children. The former husband had an annual gross income of $113,250 per year, not including bonuses, while the former wife had not been employed for fourteen years and had just begun a part-time job earning $12.50/hour. The former wife had a plan of rehabilitation to become a board certified behavior analyst in three to four years. The trial court calculated that the former husband and wife’s gross monthly income from employment was $9,215/month and $1,406/month, respectively.

In its original final order, the court awarded the Wife lump sum alimony in the form of equity in the marital residence (approximately $70,000) and rehabilitative alimony in the amount of $2,000/month for ten years. The Wife was also awarded $1,285/month in child support. The attached “Marital Asset Distribution Schedule” calculated that, after support payments and taxes, the former husband’s net monthly income would be $4,069 and the Wife’s would be $3,965. Equitable distribution of the marital assets and liabilities resulted in the former husband and wife receiving $86,318 and $139,638, respectively. The figure as to the former wife included the $70,000 of equity in the marital home.

Both parties filed motions for rehearing which were granted. Following a rehearing, the court reduced the rehabilitative alimony award to $1,500/month for three years, presumably changing the former husband and wife’s prospective incomes to $4,569 and $3,465 respectively. It further stated that “[t]he former Wife’s award of permanent alimony is the former Husband’s interest in the marital home.” Because a marital home cannot be awarded as permanent alimony, it appears the court intended to award the marital home to the former wife as lump sum alimony in lieu of permanent alimony. However, the trial court made no additional findings regarding a denial or award of permanent alimony or lump sum alimony. Nor did it update the distribution schedule based on its changes to the original final order, specifically the reduction of the rehabilitative alimony award.

Standard of Review

A trial court has broad discretion in determining which remedy to apply to accomplish equity between the parties in a dissolution proceeding. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). Such remedies include lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, special equity in property and the award of exclusive possession of property. Id. at 1202. In reviewing an order of dissolution, the remedies employed by the judge to accomplish equity between the parties should be reviewed as a whole since they are “interrelated” and “part of one overall scheme.” Id.

Permanent Periodic Alimony

“Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.” See Canakaris, 382 So.2d at 1202; see also Burrill v. Burrill, 701 So.2d 354, 356 (Fla. 1st DCA 1997). A decision to award permanent alimony must be based on an assessment of the needs of one spouse and the ability of the other spouse to pay. Id. In reaching said decision, the court must consider the factors set forth in section 61.08(2), Florida Statutes (2009), including, but not limited to, the parties’ standard of living during the marriage, the duration of the marriage, the parties’ respective ages, the value of the estate, and the parties’ education and training.

Because the parties were married less than seventeen years at the time the case was filed, this is a “grey-area” marriage and the rebuttable presumption in favor of permanent alimony does not apply. See Hill v. Hooten, 776 So.2d 1004, 1007 (Fla. 5th DCA 2001); see also Burrill, 701 So.2d at 356. As a result, the court had to rely on other factors to determine whether an award of permanent alimony was appropriate, such as disparate incomes. See Zeigler v. Zeigler, 635 So.2d 50, 54 (Fla. 1st DCA 1994) (“The disparate earning power of the parties is [ ] a significant factor in determining whether permanent ... support is appropriate.”); see also Wolff v. Wolff, 576 So.2d 852 (Fla. 1st DCA 1991) (finding permanent, periodic alimony appropriate in a 15-year marriage where the wife remained out of the workforce at the husband’s request and the husband earned four times more than the wife).

Given that at the time of the final hearing, the former husband had an annual gross income of $113,250/year and the former wife, who had not worked for fourteen years, was earning $12.50/hour, the disparity of incomes suggests the wife was entitled to an award of permanent alimony. Moreover, the findings in the original order and the court’s comments during both hearings seem to suggest it believed the former wife was entitled to such.

However, the denial of permanent alimony may be justified, assuming the trial court intended to award the marital home as lump sum alimony in lieu of permanent alimony. See Barbieri v. Barbieri, 582 So.2d 640, 641 (Fla. 3d DCA 1991) (“[A] trial court is permitted to use a lump sum distribution in lieu of, or in addition to, periodic or rehabilitative alimony.”). However, such an award is unreasonable where the former wife’s income is insufficient to satisfy her monthly expenses. See Peak v. Peak, 411 So.2d 325 (Fla. 5th DCA 1982) (reversing an award of child support and award of home as lump sum alimony where the support award was insufficient to meet household expenses, including mortgage).

Because the trial court made no findings regarding a denial of permanent alimony nor did it adjust the distribution schedule based on its changes to the support award, it is unclear whether the former wife has sufficient income to meet her monthly expenses, let alone maintain the standard of living established during the marriage.

Lump Sum Alimony

The marital home may be awarded as lump sum support alimony or through equitable distribution. See Simpson v. Simpson, 678 So.2d 882 (Fla. 3d DCA 1996). Lump sum alimony for support requires a showing of need on the part of the recipient spouse, an ability to pay on the part of the payor spouse, and a justification for the payment. See Jackson v. Jackson, 507 So.2d 1160, 1163 (Fla. 1st DCA 1987); see also Canakaris, 382 So.2d at 1201. A “justification” is a “ ‘good reason’ or useful purpose which can sustain [an] award.” Rosen v. Rosen, 386 So.2d 1268, 1271 (Fla. 3d DCA 1980) (finding that “the subject matter of the award provide[d] its own justification” where the trial court awarded the wife the marital home as lump sum alimony and the parties had been living there for several years with their children); see Rosario v. Rosario, 945 So.2d 629, 632 (Fla. 4th DCA 2006) (“[T]he trial court must find some special necessity for lump-sum payment of alimony” and, if support is needed, there must exist unusual circumstances which would require a non-modifiable award of support”).

As discussed above, although the trial court’s award of lump sum alimony in lieu of permanent alimony may be justified, the court made no findings justifying such an award either on the record or in the final order.

Because the trial court failed to make the appropriate findings to support its determination and because the denial of permanent alimony and the award of the marital home are interrelated, we REVERSE the denial of permanent alimony and the award of the marital home and REMAND for the trial court to clarify its order; consider available remedies which will accomplish equity between the parties; and make findings justifying such awards. See Peak, 411 So.2d at 328 (“We cannot set aside the child support award without also setting aside the provisions of the final judgment dealing with alimony, because they are all interrelated.”); see Perez v. Perez, 882 So.2d 537, 539 (Fla. 3d DCA 2004) (“The court may make such other modifications in the judgment as may be appropriate in light of this ruling.”).

REVERSED AND REMANDED.

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

      . Although the court did not make a finding regarding the former wife’s monthly expenses, her financial affidavit claimed expenses totaling $4,221. In turn, the former husband’s financial affidavit claimed the Wife's monthly expenditures amounted to $3,508 as the mortgage had been refinanced prior to the hearing. As a result, it would seem that if the former wife’s income is $3,465/month she has insufficient income to meet her monthly expenses.