author: HAZOURI, J.

text:
    James CALI, Appellant, v. MEADOWBROOK LAKES VIEW CONDOMINIUM ASSOCIATION “B” INC., a Florida not for profit corporation, Appellee.
    No. 4D10-116.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Joseph F. Poklemba and James C. Brady of Arnstein & Lehr, L.L.P., Fort Laud-erdale, for appellant.
    Carol M. Rooney and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig, L.L.P., Tampa, for appellee. ■
   HAZOURI, J.

James Cali appeals from a Partial Final Summary Judgment in favor of Meadow-brook Lakes View Condominium Association “B” Inc. (“Meadowbrook”), on counts I, II and III of his Second Amended Complaint.

Meadowbrook is a Florida not-for-profit corporation which conducts its business in Broward County, Florida, exists pursuant to Chapter 617 of the Florida Statutes, and operates pursuant to Chapter 718 of the Florida Statutes. Cali is one of the unit owners in Building “I” of Meadowbrook, governed by the Association.

This case stems from a negligence claim against Meadowbrook brought by Cali seeking damages he alleges were proximately caused by two severe water leaks from plumbing pipes located within the interior boundary walls of units 201 and 501. Cali is the owner of unit 201.

Cali alleges that Meadowbrook owed him a duty pursuant to Article XXI of the Declaration of Condominium and pursuant to section 718.113(1), Florida Statutes (2009), as well a duty of reasonable care to him and other unit owners. Meadowbrook denied any duty to Cali because the pipes were not part of the common elements or caused by common elements either under the Declaration or under the statute. The trial court found that there was no material issue of fact that created a duty on the part of Meadowbrook as it determined that the pipes were not a part of the common elements.

In order to determine whether the leaking pipes located within the interior boundary walls were common elements for which the Association owed a duty to repair, the trial court was presented with a number of statutes and certain portions of the Declaration of Condominium.

Section 718.103(8), Florida Statutes (2009), defines “common elements” as “the portions of the condominium property not included in the units.” The “association” is, inter alia, an “entity responsible for the operation of common elements owned in undivided shares by unit owners.... ” § 718.103(2), Fla. Stat. (2009).

Section 718.108, Florida Statutes (2009), titled “Common Elements,” provides:

(1) “Common Elements” includes within its meaning the following:
(a) The condominium property which is not included within the units.
(b) Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements.
(c) An easement of support in every portion of a unit which contributes to the support of a building.
(d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements.
(2) The declaration may designate other parts of the condominium property as common elements.

(Emphasis added). Under section 718.111, titled “The association,” subsection (4) provides:

(4) ASSESSMENTS; MANAGEMENT OF COMMON ELEMENTS. — The association has the power to make and collect assessments and to lease, maintain, repair, and replace the common elements or association property; however, the association may not charge a use fee against a unit owner for the use of common elements or association property unless otherwise provided for in the declaration of condominium or by a majority vote of the association or unless the charges relate to expenses incurred by an owner having exclusive use of the common elements or association property-

Subsection (5) provides:

(5) RIGHT OF ACCESS TO UNITS.— The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.

Section 718.113(1) on “Maintenance” provides:

(1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. ...

Section 718.115(l)(a) defines “Common expenses”:

(l)(a) Common expenses include the expenses of the operation, maintenance, repair, replacement, or protection of the common elements and association property, costs of carrying out the powers and duties of the association, and any other expense, whether or not included in the foregoing, designated as common expense by this chapter, the declaration, the documents creating the association, or the bylaws....
The Declaration of Condominium provides in Article II:
II. The terms used herein, or in the Exhibits attached hereto shall have the meanings stated in the Condominium Act and as follows, unless the context otherwise requires.
(1) Residence, Apartment or Dwelling Unit: Residence, apartment or dwelling unit as the term is used herein, shall mean and comprise the ■ separate and numbered apartment units which are designated in Exhibit A-2 to this Declaration of Condominium, excluding, however, all spaces and improvements lying beneath the undecorated and/or unfinished inner surfaces of the perimeter walls and floors, and above the undecorated and/or unfinished inner surfaces of the upper top ceilings of each dwelling unit and further, excluding all spaces and improvements lying beneath walls) and/or bearing partitions, and further excluding all pipes, ducts, wires, conduits and other facilities running through any interior wall or partition for the furnishing of utility services to apartment dwelling units and common elements.
(2) Common .Elements: Common elements as the term is used herein shall mean and compromise [sic] all of the real property, improvements and fácil-ities of the condominium other than the apartment dwelling units as the same are defined herein, all of which are more particularly described and set ■forth in Exhibit A-l. Common elements shall include easements through apartment dwelling units for all conduits, pipes, plumbing, wiring and all other facilities for the furnishing of utility services to apartment dwelling units and common elements and easements of support in every portion of an apartment dwelling unit which contributes to the support'of the improvements, and shall further include all personal property held and maintained for the joint use and enjoyment of all of the owners of all such apartment dwelling units.

(Emphasis added). Article XX, quoted by both parties is titled “MAINTENANCE AND REPAIR BY OWNERS” and provides:

Every owner must keep and maintain his apartment dwelling unit, its equipment and appurtenances, in good repair, order, condition and must perform promptly all maintenance and repair work within his apartment dwelling unit, which, if omitted, would affect the condominium in its entirety or in a part belonging to other owners or would affect other condominiums subject to the foregoing Plan of Development, being expressly responsible for the damages and liability which its failure to do so may endanger. Notwithstanding anything contained in this Declaration, the owner of each apartment dwelling unit shall be liable and responsible for the maintenance, repair and replacement, as the case may be, of all windows and all exterior doors, including sliding glass doors and all air conditioning and heating equipment, stoves, refrigerators, fans and other appliances and equipment, including pipes, wiring, ducts, fixtures and/or their connections required to provide water, light power, air conditioning and heating, telephone, sewage and sanitary service which may now or hereafter be situated in his apartment dwelling unit. Such owner shall further be responsible and liable for maintenance, repair and replacement of any and all wall, ceiling and floor exterior surfaces, painting, decorating and furnishings and all other accessories which such owner may desire to place or maintain in his apartment dwelling unit. [S]uch owner shall be responsible for pest and termite control to the extent, and with a company or companies approved by the Association. Wherever the maintenance, repair and replacement of any items, for which the owner of an apartment dwelling unit is obligated to maintain, repair or replace at his own expense, is occasioned by any loss or damage which may be covered by any insurance maintained in force by the Association, the proceeds of the insurance received by the Association, or the Insurance Trust hereinafter designated, shall be used for the purpose of making such maintenance, repair or replacement as shall, by reason of the applicability of any deductibility provision of such insurance, exceed the amount of the insurance proceed applicable to such maintenance, repair or replacement. Any terrace or balcony attached to the apartment dwelling unit must be maintained by the owner and kept in a neat, trim condition. It is expressly understood that there are appurtenant to some apartment dwelling units air conditioning equipment which may be located upon the roofs appurtenant to the units. An easement is hereby reserved in favor of each such unit for the purpose of maintenance, repair or replacement of the said air conditioning equipment by the respective owners as required herein above.

(Emphasis added). Finally, Article XXI, titled “MAINTENANCE AND REPAIR OF COMMON ELEMENTS, COMMON AREAS AND RECREATIONAL AREAS BY ASSOCIATION,” provides:

The Association, at its expense, shall be responsible for the maintenance, repair and replacement of all of the common elements, common areas and recreational areas, except, as expressly provided above, more particularly in Article XX hereof, including but not limited to all pipes, conduits, wiring, plumbing and other facilities for the furnishings of utility services which are contained in the portions of the residence contributing to the support of the building or within interior boundary walls and all such facilities within an apartment dwelling unit, which services other parts of the condominium other than said apartment dwelling unit, and as to the structure constituting the apartment dwelling units, the responsibility of the Association for maintenance, repair and replacement shall be limited to painting of all exterior walls as needed, painting and/or staining of exterior woodwork as needed. Roof maintenance which shall mean and is limited to cleaning of roof as needed, replacing roof tiles as needed and repairing cause of leaks and any damage to common elements arising therefrom. Should any incidental damage be caused to any apartment dwelling unit by virtue of any work which may be done or caused to be done by the Association in the maintenance, repair, or replacement of any common elements, the Association shall, at its expense, repair such incidental damage.

Cali argues that the trial court erred in finding that the pipes inside the interior boundary walls and which only brought water to the individual unit were not common elements.

“The standard of review applicable to summary judgment is de novo.” Curd Vill. Condo. Ass’n v. Maria, 14 So.3d 1175, 1177 (Fla. 4th DCA 2009) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id.

The Declaration of Condominium strictly governs the respective duties and responsibilities as between an association and the unit owners. Woodside Vill. Condo. Ass’n v. Jahren, 806 So.2d 452, 456 (Fla.2002). “A declaration of condominium must be strictly construed.” Curd Vill., 14 So.3d at 1177 (citation omitted). “It is fundamental that in construing a contract, the intention of the parties must be determined from examination of the whole contract and not from the separate phrases or paragraphs.” Deeb v. Field, 311 So.2d 736, 737 (Fla. 3d DCA 1975).

Section 718.108(l)(d) does include in the definition of common elements “[t]he property and installations required for the furnishings of utilities and other services to more than one unit” but it also includes “[t]he condominium property which is not included within the units.” § 718.108(l)(a), Fla. Stat. (2009). The Declaration may also include other parts of the condominium property not named in the statute as common elements. § 718.108(2), Fla. Stat. (2009).

The Declaration’s definition of a dwelling unit excludes .“all improvements beneath the undecorated and/or unfinished inner surfaces of the perimeter walls and floors” and further excludes “all pipes ... and other facilities running through any interior wall or partition for the furnishing of utility services to apartment dwelling units and common elements.” The distinction between these two exclusions from a dwelling unit is those that are behind perimeter walls and those that are behind interior walls. A reading of this definition in full indicates that the apartment dwelling unit excludes everything outside the perimeter walls as well as the pipes within the interior walls which furnish service to multiple units. References in other provisions quoted above gives the Association easements to such pipes within the apartment dwelling unit which furnish utility services to other units.

The Declaration defines ' common elements as improvements and facilities of the condominium “other than the apartment dwelling units as the same are defined herein_” It also includes the easements through apartment dwelling units. Reading these together, it appears that all the pipes behind the interior boundary (or perimeter) walls could be considered common elements, not just the ones feeding other units.

Next, when reading Article XX, the Association emphasizes parts that cause a misunderstanding as to what an owner is required to repair. The provision starts with requiring the owner to promptly perform repair work “within his apartment dwelling unit....” It then continues that “the owner of each apartment dwelling unit shall be liable and responsible for the ... repair ... of all ... appliances and equipment, including pipes ... and/or their connections required to provide water ... which may now or hereafter be situated in his apartment dwelling.” Thus, this refers to pipes in his apartment dwelling unit that he is responsible for.

The last section relied upon by the Association is Article XXI. The Association reads it as the Association being responsible for pipes within interior boundary walls and all such facilities within an apartment dwelling unit which services other parts of the condominium other than said apartment dwelling unit. However, when read as a whole, it states in pertinent part:

The Association, at its expense, shall be responsible for the ... repair ... of all of the common elements ... except, as expressly provided above, more particularly in Article XX hereof, including but not limited to all pipes ... and other facilities for the furnishings of utility services which are contained in the portions of the residence contributing to the support of the building or within interior boundary walls [which is outside the apartment dwelling unit] and all such facilities within an apartment dwelling unit [which is separate from facilities within interior boundary walls], which services other parts of the condominium other than said apartment dwelling unit....

(Emphasis added). Thus, the reference which limits repair of pipes which must service other units is to pipes that are in the inside of the dwelling unit, not outside it in an interior boundary wall. Reading the Declaration and the statutes as a whole creates a factual dispute as to whether all the pipes within the interior boundary or perimeter could be common elements. The resolution of this factual dispute can only be resolved by the trier of fact. Therefore, the trial court erred in granting partial final summary judgment. We reverse for further proceedings consistent with this opinion.

Reversed and Remanded for Further Proceedings Consistent With This Opinion.

GROSS, C.J., and CIKLIN, J., concur.

      . The Declaration provides in Article XVII:
      Whenever it is necessary to enter any apartment dwelling unit for the purpose of performing any maintenance, alteration or repair to any portion of the common element, the owner of each apartment dwelling unit shall permit other owners or their representatives or the duly constituted and authorized agent of the Association, to enter such apartment dwelling unit, constituting an appurtenance to any such apartment dwelling unit, for such purposes, provided that such entry shall be made only at reasonable times and with reasonable advance notice.

      . Chapter 718, Florida Statutes (2009).


source: Caselaw Access Project

license: Public Domain

text:
    Alfred HENDRICKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-507.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HAZOURI, J.

Alfred Hendricks appeals his revocation of community control, contending the State submitted only hearsay evidence. We agree, and reverse and remand to the trial court for reinstatement of Hendricks’s community control.

Hendricks pled no contest to a charge of attempted first degree murder. The court sentenced Hendricks to 364 days of jail time, followed by two years of community control, followed by seven years of probation. In 2008, the State filed an affidavit of violation of community control, contending that Hendricks had violated three conditions. Hendricks admitted the violations and the court revoked his community control, sentencing him to one year and one day in prison, followed by one year of community control, followed by seven years of probation. In 2009, the State then filed a second affidavit of violation of community control, alleging several violations that included Hendricks having contact with the victim, Nichola Hamilton. It is this later alleged violation which was the subject of Hendricks’s violation of community control hearing.

At the hearing on Hendricks’s violations of community control, three law enforcement officers testified. Notably, the victim, Nichola Hamilton, did not testify at the hearing. Detective James Jaggers confirmed that on July 3, 2009, he responded to a “violent domestic” call at a Fort Lauderdale apartment. As the first responding officers had already identified the woman at the scene as Nichola Hamilton-Stennatt, Detective Jaggers did not request additional identification. Detective Jaggers also did not verify with the landlord that Ms. Hamilton-Stennatt resided within the apartment.

Ms. Hamilton-Stennatt then gave Detective Jaggers a sworn statement. She indicated that “she was living in the residence with Mr. Hendricks and her son ... and that they had a verbal argument that escalated into a physical argument where Mr. Hendricks attacked her.” Ultimately, the court determined that Hendricks had violated the conditions of his community control by having contact with the victim, and sentenced Hendricks to ten years in prison.

We review an order revoking community control for an abuse of discretion. See Correa v. State, 43 So.3d 738, 743 (Fla. 2d DCA 2010) (citation omitted). “When seeking to revoke a defendant’s community control, the State must prove by the greater weight of the evidence that a willful and substantial violation occurred.” Id. (citing Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003)).

The trial court erred in revoking Hendricks’s community control because the State presented only hearsay evidence. “[H]earsay alone is insufficient to sustain a revocation of probation.” Mata v. State, 31 So.3d 257, 259 (Fla. 4th DCA 2010) (citation omitted). However, “[h]earsay evidence is admissible in violation of probation hearings and can sustain a violation when corroborated by direct evidence.” Robertson v. State, 800 So.2d 338, 339 (Fla. 3d DCA 2001) (citing Morris v. State, 727 So.2d 975 (Fla. 5th DCA 1999)).

Section 90.801(l)(c), Florida Statutes (2010), defines hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” At Hendricks’s violation hearing, Detective Jaggers testified as to what the victim, who identified herself as Nichola Hamilton-Stennatt, told him at the scene. There was no corroborating evidence to support the hearsay: Nichola Hamilton-Stennatt did not testify; Detective Jaggers did not ask the woman he spoke with for identification; and there was no testimony from a landlord or provision of a lease confirming that the apartment was rented by Nichola Hamilton-Stennatt.

Accordingly, we reverse the revocation of Hendricks’s community control and direct the trial court to reinstate Hendricks’s community control.

Reversed and Remanded.

GROSS, C.J. and CIKLIN, J., concur.


author: PER CURIAM.

text:
    Isdelia PEREZ, Appellant, v. WALGREEN CO., Appellee.
    No. 4D09-4666.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Keith Chasin of Law Office of Keith Chasin, Miami, for appellant.

      Alfredo Marquez-Sterling of Arnstein & Lehr LLP, Miami, for appellee.
   PER CURIAM.

Affirmed. See Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251, 1257 n. 2 (Fla. 4th DCA 2003), approved, 908 So.2d 342 (Fla.2005); Jordan ex rel. Shealey v. Masters, 821 So.2d 342, 346 (Fla. 4th DCA 2002).

WARNER, POLEN and CONNER, JJ„ concur.


author: STEVENSON, J.

text:
    Ronald A. SCARFONE, et al., Appellants, v. P.C.-PLANTATION, LLLP, et al., Appellees.
    No. 4D09-4272.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Joseph E. Altschul of Joseph E. Alt-schul, LLC, Fort Lauderdale, for appellants.
    Bernard L. Egozi and Joseph H. Rose of Egozi & Bennett, P.A., Aventura, for ap-pellees.
   STEVENSON, J.

This appeal stems from a dispute over several pre-construction purchase agreements entered into between appellants, as purchasers of condominium units, and P.C. — Plantation, LLLP, as developer. The purchasers filed a complaint, alleging that Plantation violated section 718.503, Florida Statutes, by converting the condominiums into a “luxury rental community.” The complaint was dismissed for failure to state a claim. Because the complaint sufficiently stated a claim under section 718.503, we reverse.

Section 718.503(l)(a)l., states, in relevant part, that a contract for the sale of a residential unit must:

Contain the following legend in conspicuous type: ... THIS AGREEMENT IS ALSO VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER’S INTENTION TO CANCEL WITHIN 15 DAYS AFTER THE DATE OF RECEIPT FROM THE DEVELOPER OF ANY AMENDMENT WHICH MATERIALLY ALTERS OR MODIFIES THE OFFERING IN A MANNER THAT IS ADVERSE TO THE BUYER.

In 2005, Plantation created a subdivision, Grove East, and offered condominium units for sale. Between 2005 and 2006, the purchasers entered into pre-construction purchase agreements with Plantation for condominiums to be built in the subdivision. In 2008, the purchasers learned, during a ceremonial ribbon cutting, that Grove East had been developed into a “luxury rental community.” The purchasers never received notice from Plantation that this change would occur. The purchasers filed their complaint, alleging that the change was material and adverse to them and sought return of their deposits. The purchase agreements contained the following provision:

Seller’s salespeople can show Units, the Association Property and/or the Common Elements, erect advertising signs and do whatever else is necessary in Seller’s opinion to help sell, resell, finance or lease Units....

Plantation filed a motion to dismiss, arguing that Plantation reserved the right to lease units in the purchase agreement; thus, the complaint failed to state a change that materially altered the offering. The trial court agreed and granted the motion.

A trial court’s decision on a motion to dismiss is reviewed de novo. Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011). This court’s review is limited to the four corners of the complaint, all facts must be accepted as true and all reasonable inferences must be drawn in favor of the pleader. See id.

The complaint sufficiently alleged a claim under section 718.503 by stating that Plantation changed the condominiums into a “luxury rental community” subsequent to executing the purchase agreements. A change to an offering is material where a reasonable buyer would find the change “ ‘so significant that it would alter the buyer’s decision to enter into the contract.’ ” Mastaler v. Hollywood Ocean Grp., L.L.C., 10 So.3d 1114, 1116 (Fla. 4th DCA 2009) (quoting D & T Props., Inc. v. Marina Grande Assocs., Ltd., 985 So.2d 43, 49 (Fla. 4th DCA 2008)). While Plantation reserved the right to lease some units, a full scale conversion of Grove East into a “luxury rental community” may constitute a change to such a degree that it would frustrate a buyer’s reasonable expectations as to the material nature of the offering and alter their decision to enter the agreement. See, e.g., BB Landmark, Inc. v. Haber, 619 So.2d 448, 449 (Fla. 3d DCA 1993) (defining “materially” as “to a significant extent or degree”). This raises a question of fact that is not appropriately disposed of on a motion to dismiss. See Chodorow v. Porto Vita, Ltd., 954 So.2d 1240, 1242 (Fla. 3d DCA 2007) (noting that fact-intensive issues are better disposed of on a motion for summary judgment or at trial, rather than on a motion to dismiss).

Accordingly, the complaint sufficiently stated a claim under section 718.503, and the trial court’s order is reversed.

Reversed.

GROSS, C.J., and GERBER, J., concur.


author: POLEN, J.

text:
    Larry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-599.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Philip Massa, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pam Bondi, Attorney General,.Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant, Larry Williams, appeals the trial court’s judgment and sentence, adjudicating him guilty of grand theft in violation of section 812.014, Florida Statutes (2006), and sentencing him to five years in prison. We reverse Williams’ conviction for grand theft and remand for entry of a conviction for petit theft.

Williams was arrested for burglary of a structure and grand theft on February 24, 2006. On March 22, 2006 the State filed an information charging Williams, along with three co-defendants, with Count I (burglary of a dwelling), Count II (grand theft), and Count III (possession of burglary tools). Williams entered a plea of not guilty. The burglary and theft were alleged to have occurred at the home of Cynthia Rhoat.

At trial, Officer Tersigni testified that on February 24, 2006, while he was off-duty, he was riding his bicycle around the Forest Ridge neighborhood in Davie, Florida at around 10:15 a.m., when he observed a white Dodge Neon traveling eastbound at a very slow rate of speed. As he passed by the vehicle, he observed the driver, and also two passengers lying in the rear seats. He then called his dispatcher, advising him to send a couple' of units because he believed the occupants of the car were going to break into a house. Sometime later, Officer Hones, called Tersigni on his cell phone to notify him that he had stopped a vehicle matching the description. Detective Kiso testified that while en route to the traffic stop, he observed three black males walking on Nob Hill Road who matched the description of the individuals he was looking for. He then encountered them and conducted a pat down of the suspects, which revealed the following: co-defendant Limart Boilwater’s pockets were “loaded with jewelry, all four pockets, front and rear”; Williams’ pockets were “jam-packed with wadded cash. U.S. currency.” Each bill was “crumbled up”; and co-defendant Jerome’s pockets had money, jewelry and two small pieces of a spark plug. . After Kiso emptied Williams’ pockets, he said he stuffed the large quantity of . loose cash into a ziploc bag. When he got to the department and straightened out and sorted the money to count it, he testified that he discovered shards of broken glass with the money; however, he could not verify that the glass found on Williams matched the glass found at Rhoat’s house. .Besides the money and glass, Kiso testified that nothing else was found on Williams. After the property was recovered from the suspects, it was photographed, logged and returned to Rhoat. Kiso did not testify as to the amount of money found on Williams. Likewise, Tersigni did not testify as to what was found on Williams or what was alleged to have been stolen from Rhoat.

Rhoat testified that upon arriving at her house, the officers came to her with a bag of money and a bag of jewelry. Rhoat recognized her jewelry because she has “a lot of custom pieces made that are specifically snow white.” Rhoat also identified the money as being familiar to her because she kept Sacagawea coins, $2 bills, crumpled bills, and Susan B. Anthony dollar coins. Detective Kiso returned almost $2,000 and jewelry to her-. At trial, Rhoat was shown State’s Composite Exhibit 9 (a set of 11 photographs). ■ Rhoat testified that photographs # 5 and #11 accurately depicted the jewelry and some specific currency (the Sacagawea coins, $2 bills, and different denominations of coins) that were returned to her. However, Rhoat never testified as to how much U.S. currency was taken from her on February 24, 2006.

After the State rested, Williams moved for judgment of acquittal, arguing that the State did not link the cash found on Williams to the theft, which the trial court denied. The trial court then refused the State’s request for a principal instruction and, therefore, the jewelry was not attributable to Williams. The jury returned a not guilty verdict on burglary of a dwelling and a guilty verdict on the grand theft charge. At the sentencing hearing, Williams moved for judgment notwithstanding the verdict, which,was denied. The court sentenced Williams as a habitual offender to five years’ incarceration. This appeal followed.

On appeal, Williams argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present any evidence to establish the value element of the money alleged to have been taken, the amount of money found on Williams, and the link between the money recovered from Williams and the money alleged to have been stolen from Rhoat. We agree.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Id. “If after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. “However, if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.” Id.

To establish grand theft, the State must prove that the value of the stolen property is “$300 or more, but less than $5,000,” see § 812.014(2)(c)(l), Fla. Stat. (2006), “beyond and to the exclusion of every' reasonable doubt.” Gilbert v. State, 817 So.2d 980, 982 (Fla. 4th DCA 2002). In order to determine whether the evidence adduced at trial to prove the value of the stolen property is sufficient to withstand a motion for judgment of acquittal, the court must ascertain whether the person testifying is competent to testify as to the value of the property. I.T. v. State, 796 So.2d 1220, 1221 (Fla. 4th DCA 2001); Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983). One’s competency to testify as to the value of stolen property is not so much a question of whether he owns the stolen property as it is a question of his personal knowledge of the property. Taylor, 425 So.2d at 1193.

In this case, Rhoat did not testify at trial as to either the specific amount, or even a general approximation, of U.S. currency that was taken from her residence. Rhoat only testified that she had U.S. currency taken, $2 bills, Sacagawea coins, Susan B. Anthony coins, and crumpled bills. Thus, Rhoat did not have personal knowledge as to the amount of U.S. currency that was taken from her. Although $2,000 in cash was returned to her, this does not establish what was taken from her. When Williams was arrested, his pockets contained cash; however, there was no testimony at trial as to the specific amount of cash recovered from Williams. Although the State offered photographs of the cash recovered from the three individuals stopped by Detective Kiso, it is not clear from the record which cash was found on Williams. Further, although it is a reasonable inference that Williams did steal money from Rhoat, this fact alone does not lead to the conclusion that all of the money found on Williams was taken from Rhoat. Thus, the State failed to exclude Williams’ reasonable hypothesis of innocence that all the money found on him was not taken from Rhoat.

Because a conviction for grand theft requires the State to prove beyond a reasonable doubt that the value of the stolen property is $300 or more, but less than $5,000, the critical issue in this case is how much money was actually taken by Williams from Rhoat. As this element was not proven by the State, we hold that the trial court erred in denying Williams’ motion for judgment of acquittal as to grand theft, as the State did not present sufficient evidence to establish the value element of the U.S. currency alleged to have been taken from Rhoat, the amount of U.S. currency found on Williams, and the link between the U.S. currency recovered from Williams' and the U.S. currency alleged to have been stolen from Rhoat. Consequently, the State failed to prove the required elements of section 812.014, Florida Statutes (2006). However, we find that there was competent substantial evidence adduced at trial for the jury to find that Williams did commit theft. Therefore, on remand the trial court shall reduce Williams’ conviction to petit theft.

Reversed and Remanded.

GROSS, C.J., and DAMOORGIAN, J., concur.

      . The trial court did grant a judgment of acquittal on Count III (possession of burglary tools).


author: WARNER, J.

text:
    Valerie KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4715.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Valerie Kennedy, appeals her convictions and consecutive 30-year sentences for aggravated manslaughter and aggravated child abuse in the death of her three-year-old son. Among other complaints, she claims that the court fundamentally erred in instructing the jury on aggravated child abuse. We agree that the jury instruction deviated from the standard instruction and failed to give a complete definition of the term “maliciously.” The court also gave a legally incorrect response to the jury’s question about the definition of “torture.” Based upon these errors, we reverse the conviction for aggravated child abuse. We affirm, however, the conviction for aggravated manslaughter, finding no error or abuse of discretion on the remaining issues raised.

Valerie Kennedy was indicted on one count of first-degree felony murder and one count of aggravated child abuse, arising out of the death of her three-year-old son, J.M. He died on January 1, 2006, a week after receiving scalding burns in the bathtub of Kennedy’s apartment. The testimony at trial revealed that Kennedy shared an apartment with a friend, Ms. Spencer. On the date of the incident, Christmas day, Kennedy’s husband and other children were at the apartment. J.M. was on the bed with Spencer when Kennedy came to get him for a bath because J.M. had a bowel movement in his pants. Kennedy did not appear angry. After he left, Spencer heard J.M. start crying. Spencer assumed that J.M. was getting a spanking. This went on for a short while. Spencer then heard J.M. scream out in a louder fashion. The scream sounded different from the crying — it was extremely loud. Spencer got up to see what was going on.

Spencer went to the hallway, where Kennedy’s husband and daughter, D.S., age seven, were standing outside the bathroom. Spencer saw Kennedy sitting on the edge of the bathtub, while J.M. was standing on the floor outside the bathtub. J.M.’s “feet were really red, like burned, and there was no skin.” Also, J.M.’s legs were pinkish-red and burned. Spencer temporarily went out of the room because she vomited after seeing the burns on J.M’s body.

Kennedy said that J.M. “jumped in the water.” However, Spencer asked her how J.M. got burned on his buttocks and the back of his legs if he jumped in the water. She said nothing in response to the question. Kennedy did not call an ambulance. Instead, she phoned her mother. She did appear upset and kept saying, “Look what the water done to my baby.”

J.M.’s grandmother picked him up and took him to her house. Spencer saw him there the next week, although he was in bed. His burns appeared improved. However, on January 1, 2006, a deputy was called to the house and found J.M. without a pulse and with substantial burns. Although emergency personnel instituted life-saving procedures, J.M. was declared dead upon arrival at the hospital. The emergency room doctor suspected child abuse based upon the burns on the child.

Dr. Gertrude Juste, a forensic pathologist for the Broward County Medical Examiner, performed the autopsy on J.M. Dr. Juste stated that the child suffered second or third degree burns on about 60 to 70 percent of his body surface. The child also had a blunt trauma injury similar to a belt mark. She testified that a child would feel extreme pain with these injuries. Dr. Juste concluded that the manner of death was a homicide caused by an “immersion burn resulting in derangement that led to-the death.”

Dr. Juste testified that the pattern of the burns showed that J.M. was being held against the tub, likely by the top of his torso, while there was hot water in the tub. He did not voluntarily get into the water and then get out when the water became too hot. Dr. Juste opined- that J.M.’s buttocks were held against the surface of the tub and thus were not burned to the same degree as other parts of his body. A person so holding the child would likely have been splashed with the hot water and have known the heat of the water. Water of 138.5 degrees would cause burns within 20 seconds.

During the State’s case-in-chief, defense counsel requested a determination of the competency of P.S., whom the state planned to call as a witness. She was nine years old at the time of trial, and the prosecutor indicated that she was developmentally delayed. Following a lengthy proffer, the court noted that while D.S. had some difficulty articulating her answers, she was nonetheless able-to .do so. The judge further stated that he had no doubt that D.S. understood the difference between the truth and a lie, and found her competent to testify.

After the trial court ruled that D.S. was competent to testify, D.S. testified that J.M. had done a “number two” in his diaper and Kennedy put him in the bathtub and burned him up. J.M. wanted to get out and said it was hot, but Kennedy did not let him get out. When he tried to get out, she whipped him and pushed him down on his shoulder. D.S. stated that J.M. did not get in trouble for soiling his diaper. However, she also testified that Kennedy-hit J.M. with a belt and he cried. In describing J.M.’s body .when he got out of the water, D.S. testified, “Pink, pink. I saw burn.” He was burned all over his body and later died at his grandmother’s house.

The state also presented evidence that the owner of the apartments had replaced the heating element in the water heater shortly before the incident. He set the temperature gauge between 145 and 150 degrees, which is higher than normal.

The defense presented Kennedy’s husband who was present on the date when J.M. was burned. He testified that his wife was distraught and stated that she did not know that the water was hot enough to burn.

Dr. John Marraccini, a board certified forensic pathologist, testified for the defense. Dr. Marraccini agreed that J.M.’s injury pattern was consistent with an immersion burning of a child. However, Dr. Marraccini testified that although one should be suspicious that an injury pattern like this was caused by deliberate action, it was inappropriate to jump to that conclusion from the injury pattern alone. There was nothing about the burn pattern itself that would indicate that the injury was definitely a deliberate injury. Dr. Marrac-cini noted that J.M. suffered second and third degree burns, but explained that if the water temperature was at least 138.5 degrees, J.M.’s injuries could have been acquired in less than five seconds.

After hearing all the evidence, the jury found Kennedy guilty of the lesser-included offense of aggravated manslaughter on count one, and guilty of aggravated child abuse as charged in count two. She appeals.

Although Kennedy raises several issues on appeal, we find that one requires reversal. In instructing the jury on aggravated child abuse, the trial court used an outdated definition of “maliciously.” Because the definition reduced the state’s burden of proof, it constituted fundamental error.

Kennedy was charged with aggravated child abuse “by willfully torturing or maliciously punishing J.M., a human being less than 18 years of age, and/or by knowingly or willfully committing Aggravated Battery or Child Abuse causing great bodily harm, to-wit: by causing him to sustain burns over a large portion of his body_” Section 827.03(2), Florida Statutes (2005), defines “aggravated child abuse” as occurring when a person: (a) commits aggravated battery on a child; (b) willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or (c) knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child. § 827.03(2).

At trial, in giving the instruction on aggravated child abuse the court instructed the jury that: “ ‘Maliciously’ means wrongfully, intentionally, without legal justification or excuse.” However, this was an incomplete definition of the term “maliciously” as it is set forth in the standard jury instruction. The complete definition of “maliciously” is as follows:

“Maliciously” means wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.

Fla. Std. Jury Instr. (Crim.) 16.1 (2005). The trial court left out the explanatory second sentence of the instruction. The second sentence clarifies the type of circumstances which may establish maliciousness which require “that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.” This language suggests that maliciousness would not be established if the state failed to show that the purpose of the act was to inflict pain. Without this missing language, the jury was left to consider the issue of maliciousness without any direction. The instruction reduced the state’s burden of proof by failing to require the jury to find that the primary purpose of the act was to cause unjustifiable pain.

Although Kennedy did not object to the definition of “maliciously,” the failure to adequately definé “maliciously” constitutes fundamental error. See Reed v. State, 837 So.2d 366 (Fla.2002). In Reed, the Florida Supreme Court held that the standard jury instruction for aggravated child abuse constituted fundamental error because the instruction inaccurately defined the disputed element of malice. The trial court gave Reed’s jury the standard instruction on aggravated child abuse, which at that time defined maliciously as “wrongfully, intentionally, without legal justification or excuse.” The court found that this definition was erroneous. The correct definition was the same definition as malice, which is defined as “ill will, hatred, spite, an evil intent.” See State v. Gaylord, 356 So.2d 313, 314 (Fla.1978). Thus, the Reed court reasoned that the inaccurate definition reduced the state’s burden of proof on an essential element of the offense charged, by permitting a jury to return a guilty verdict based upon a finding of only legal or “technical” malice. Reed, 837 So.2d at 368-69.

Reed involved an early version of the aggravated abuse statute which did not define “maliciously.” After Reed, the legislature amended section 827.03 and defined the term “maliciously” as it now appears in the current standard jury instruction. See § 827.03(4), Fla. Stat. (2005). Nonetheless, under Reed, fundamental error occurs where a jury instruction incorrectly defines a disputed element of the crime in such a way as to reduce the state’s burden of proof. As we noted before, by failing to .include the second sentence of the standard jury instruction, the state’s burden of proof was reduced. Thus, fundamental error occurred.

Apart from the issue concerning the incomplete definition of “maliciously,” Kennedy also maintains that the error was compounded when, over defense objection, the trial court told the jury that it could substitute “omission or neglect” for torture in the aggravated child abuse instructions. The written jury instructions in this case stated that “torture” means “every act, omission, or neglect by which unnecessary or unjustifiable pain or suffering is caused.”- In particular, during deliberations the jury asked: “Can omission or neglect be substituted for torture under aggravated child abuse, are there degrees of neglect, and what is the definition of intentional?” In response, over defense objection, the court answered “yes” to the first part of the question. However, the court otherwise told the jury to rely on the jury instructions and proceed accordingly. The court also reiterated that “when I tell something about a specific instruction, you should still read all the instructions as a whole.”

The trial court’s explanation to the jury was misleading. If the jury simply substituted “omission or neglect” for “torture” in the aggravated child abuse instruction, the replaced instruction would read: “[Kennedy] willfully [omitted or neglected], maliciously punished, and/or willfully and unlawfully caged J.M.” This is not correct, however, because under the definition of torture provided in the written instructions, the “act, omission, or neglect” must cause “unnecessary or unjustifiable pain or suffering.” Thus, again the state’s burden of proof was reduced by the trial court’s oral instruction.

For these reasons, we reverse Kennedy’s conviction for aggravated child abuse. Kennedy contends that her conviction for aggravated manslaughter should also be reversed as a result. We disagree. Unlike the charge of felony murder (which the jury rejected), the crime of aggravated manslaughter did not depend upon the commission of an underlying crime — in this case, aggravated child abuse. Instead, to prove the crime of aggravated manslaughter, the jury needed only to conclude: 1) J.M. was dead; 2) the death of J.M. was caused by the intentional act or culpable negligence of Kennedy; and 3) J.M. was under 18 years of age. Thus, the erroneous instruction on aggravated child abuse did not affect the validity of the conviction for aggravated manslaughter.

Kennedy also raises several other issues on appeal, which we comment on briefly. She first claims that the court erred in admitting the testimony of her daughter D.S., a developmentally disabled child, to testify. As noted above, D.S. was present in the bathroom when J.M. was burned. Kennedy claims that the child was not competent to testify. A trial court’s ruling on the competency of a witness to testify is reviewed for an abuse of discretion. See Lloyd v. State, 524 So.2d 396, 400 (Fla.1988). “A decision upon the competency of a child to testify is one peculiarly within the discretion of the trial judge because the evidence of intelligence, ability to recall, relate and , to appreciate the nature and obligations of an oath are not fully portrayed by a bare record.” Fernandez v. State, 328 So.2d 508, 509 (Fla. 3d DCA 1976). We find that to be the case here. After careful review of the record, we cannot say that the trial court abused its discretion in finding the child competent to testify. Because the issue is so close, and the passage of time may have impaired this child’s ability to testify, should her testimony again be required in any retrial, the court must make a renewed finding of competency. Our finding that the trial court did not abuse its discretion in this trial should not be considered as establishing D.S.’s competency in further proceedings.

Kennedy also contends that the prosecutor’s closing argument, to which no objection was made at trial, was riddled with misstatements of fact and law such that it constituted fundamental error. Improper comments rise to the level of fundamental error only where the error “reaches down into the validity of the trial itself to the extent that a verdict of guilty could . not have been obtained without the assistance of the alleged error.” Brooks v. State, 762 So.2d 879, 899 (Fla.2000). In order to require a new trial based on improper prosecutorial comments, the prosecutor’s- comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise. Anderson v. State, 863 So.2d 169,187 (Fla.2003).

We have reviewed the prosecutor’s closing argument against the testimony at trial. While some statements border on being misstatements of fact, the prosecutor did have some evidentiary basis for most of them. And while the prosecutor did make some misstatements of law, they dealt with the requirements for aggravated child abuse. We have already concluded that reversal of that conviction is necessary because of the erroneous jury instruction. The prosecutor used inflammatory language in some places during the argument, which she should not have used, and we condemn. However, we cannot conclude that the jury was swayed to reach a more severe verdict than it would have otherwise rendered. Kennedy was charged with felony murder, and the jury found her guilty of aggravated manslaughter, the least severe lesser-included homicide offense of felony murder that was available to the jury on the verdict form. We cannot conclude that the comments constituted fundamental error.

In the proceedings at trial, Kennedy moved to dismiss the indictment based upon Brooks v. State, 918 So.2d 181 (Fla.2005), which she cites for the proposition that a single act of aggravated child abuse causing the death of the child merges into a charge of felony murder. Although she was acquitted of the felony murder charge, Kennedy now argues on appeal that under Brooks her conviction for aggravated child abuse merged with her conviction for aggravated manslaughter. In Brooks, the court treated the single act of stabbing which caused the death of an infant child, and which constituted the aggravated child abuse, as merging with the homicide. Id. at 198-99. At least one court has criticized Brooks, and suggested that its comments constitute dicta. See Lewis v. State, 34 So.3d 183, 186 (Fla. 1st DCA 2010), rev. granted, 53 So.3d 230 (Fla.2011). We need not decide whether we agree with the Lewis panel’s conclusion that the pertinent language in Brooks was dicta. In Lewis, the court concluded that, even assuming the language of Brooks was binding, a mother’s act of holding her child underwater in a swimming pool long enough to produce unconsciousness and death did not constitute a single act under Brooks. Similarly, in this case, the evidence showed that the child struggled to get out of the hot bathwater and that the mother pushed the child into the water. We think Lewis is more analogous to the facts of this case than Brooks. We therefore conclude that the offenses did not merge, as there was evidence of more than a single act of abuse.

Finally, we conclude that Kennedy’s challenge to the trial court’s denial of her motion for judgment of acquittal lacks merit.

For the foregoing reasons, we reverse Kennedy’s conviction for aggravated child abuse and remand for a new trial. We affirm her conviction for aggravated manslaughter.

STEVENSON and GERBER, JJ„ concur.

      . Although not specifically raised as an issue on appeal, the trial court instructed the juiy with an outdated definition of torture. See Cox v. State, 1 So.3d 1220, 1223 (Fla. 2d DCA 2009) ("Previous versions of section 827.01, Florida Statutes, defined torture for purposes of aggravated child abuse as 'every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused.’ However, this definition was deleted when chapter 827 was extensively amended in 1996.”) (citation omitted).

      . The court’s full response was: “Question: Can an omission or neglect be substituted for torture under aggravated child abuse? Again, I would direct your attention to the definition of aggravated child abuse, but the short answer is yes.”

      . The reason the manslaughter is deemed "aggravated” under the statute is simply because the child was under the age of 18. See § 782.07(3), Fla. Stat. (2005). '


text:
    Edwige GUERRIER, Appellant, v. JOHN KNOX VILLAGE OF FLORIDA INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 4D10-2420.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Edwige M. Guerrier, Pompano Beach, for appellant.
    M. Elaine Howard, Tallahassee, for ap-pellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Suarez v. Unemployment Appeals Comm’n, 871 So.2d 1039 (Fla. 5th DCA 2004).

MAY, DAMOORGIAN and CONNER, JJ., concur.


text:
    James BEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1207.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the finding that appellant willfully violated his community control. Appellant’s house had been without electricity for several months, so he ran an extension cord from a neighbor’s house to charge a miniature tracking device used to monitor his whereabouts. He had been sleeping outside to stay within the range of the tracking device, but moved inside to a bedroom due to the cold weather. This move brought him outside of the range of the tracking device. The state presented no evidence that appellant intentionally disregarded the rules of the GPS monitoring system. See Correa v. State, 43 So.3d 738 (Fla. 2d DCA 2010).

Reversed and remanded.

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


text:
    Jeffery HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1033.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Jeffery Hayes, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jeffery Hayes appeals a trial court order dismissing his amended motion for post-conviction relief as untimely filed. We reverse because the trial court had earlier entered an order dismissing his original motion without prejudice to refile an amended motion on certain of the twenty-nine grounds raised, and that order contained no time limit for compliance. See Armstrong v. State, 989 So.2d 1291 (Fla. 4th DCA 2008); Woods v. State, 963 So.2d 348 (Fla. 4th DCA 2007).

The only issue remaining is whether the trial court must entertain Hayes’s original motion as well as his amended motion, which did include all twenty-nine grounds as originally raised, but which was amended in part in compliance with the trial court’s order of dismissal without prejudice. We conclude that the trial court’s review should be confined to the amended motion only and not the original motion. The amended motion superseded the original one. Accordingly, we reverse the trial court’s order of dismissal, and remand for the trial court to consider the amended motion on the merits.

Reversed and Remanded.

POLEN, HAZOURI and GERBER, JJ., concur.


text:
    Timothy SHIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1710.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Timothy Shields, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Timothy Shields appeals a St. Lucie Circuit Court order denying some of the claims he raised in his motion for post-conviction relief following an evidentiary hearing, and an earlier order summarily denying his remaining claims.

Shields was convicted, in separate trials, of aggravated assault with a deadly weapon, and of possession of a firearm by a convicted felon in the other. He appealed his conviction and sentence in the possession case only, and this Court affirmed without opinion in Shields v. State, 869 So.2d 567 (Fla. 4th DCA 2004). He then timely filed a motion for post-conviction relief pursuant to Fla. R.Crim. P. 3.850 raising six claims of ineffective assistance of trial counsel.

The trial court summarily denied portions of grounds one and two of the motion, relating to the prosecutor’s opening statement, and grounds three and six. It then ordered an evidentiary hearing on the remaining grounds. At the conclusion of the evidentiary hearing, a successor trial court judge advised that he would later rule on the record. There is no record of the court having ruled. Instead, it appears that the trial court entered a written order stating that the claims entertained at the evidentiary hearing were being denied based on findings announced in open court. No such findings or conclusions are in the record.

We affirm without further comment the trial court’s summary denial of those portions of grounds one and two as identified by the court, as well as grounds three and six. However, we are unable to reach the merits of Shields’s challenges to the trial court’s denial of those claims considered after evidentiary hearing, given the absence of findings of fact and conclusions of law. Rule 3.850(d) provides in part: “If an evidentiary hearing is required, the court shall grant a prompt hearing thereon and shall cause notice thereof to be served on the state attorney, determine the issues, and make findings of fact and conclusions of law with respect thereto.” (emphasis added).

Therefore, we reverse and remand for the trial court to make the required findings of fact and conclusions of law on those claims considered at the evidentiary hearing. Miller v. State, 908 So.2d 1168 (Fla. 3d DCA 2005); Thomas v. State, 954 So.2d 56 (Fla. 1st DCA 2007).

Affirmed in part, Reversed and Remanded in part with instructions.

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Michael NOEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4970.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The public defender has moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has filed an appellate brief noting one sentencing error. Appellant pled guilty to attempted robbery with a firearm and was sentenced to twenty-seven years in prison, followed by two years of community control and three years of probation. Attempted robbery with a firearm, however, is a second-degree felony subject to a maximum sentence of fifteen years in prison. § 775.082(3)(c), Fla. Stat. (2007); Zeman v. State, 46 So.3d 162, 162-63 (Fla. 4th DCA 2010). Thus, the sentence imposed on the attempted robbery count was erroneous, and we reverse the sentence on that charge and remand for resentencing. Otherwise, we agree that the record contains no issues of arguable merit. We grant the public defender’s motion to withdraw and affirm the conviction and sentence in all other respects.

Affirmed, in part, reversed in part, and remanded.

MAY, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Robert WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-1495.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2011.
    Roger P. Foley of the Law Office of Roger P. Foley, P.A., Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Robert Williams petitions this court for a writ of habeas corpus, challenging the trial court’s order of pretrial detention after he failed to appear for calendar call in connection with his charge for failure to redeliver a hired vehicle. We grant the petition.

Williams offered an explanation for his failure to appear for calendar call in October 2010: as a member of the Florida National Guard, he was called up early in September by his special forces unit and was given only twenty-four hours notice to go into Africa, to a location where he had no opportunity to call his lawyer until approximately a month before the April 2011 bond hearing. No findings were made that his failure to appear was willful; the judge stated only that, although Williams might be in the military, his nonappearance was “not acceptable to me.” Further, it is clear from the record that the trial court made no findings that “that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial,” a requirement of pretrial detention under section 907.041(4)(c)7., Florida Statutes (2010). Blair v. State, 15 So.3d 758, 759 (Fla. 4th DCA 2009), approved, 39 So.3d 1190 (Fla.2010). Even if the trial court meant to indicate that it found the nonappearance to be willful, the further findings still were necessary. Bannister v. Lamberti, 32 So.3d 745 (Fla. 4th DCA 2010) (holding that, even where willfulness of nonappearance is conceded, trial court ordering pretrial detention still must make finding that pretrial detention is necessary to assure defendant’s appearance at trial) (citing Blair).

We therefore grant the petition for writ of habeas corpus to the extent of remanding to the trial court to set an expedited hearing to determine whether Williams’s nonappearance for calendar call was willful and whether there are any reasonable conditions of release which would assure Williams’s presence at trial.

Petition granted; case remanded for an expedited hearing.

GROSS, C.J., STEVENSON and MAY, JJ., concur.

      . This was his second failure to appear in this case; however, his bond was reinstated after he failed to appear for arraignment. In his motion to reinstate that bond, he explained that neither he nor his bondsman was advised of the date of arraignment, a position which was supported by the bondsman’s sworn statement and affidavit to remain on bond.


author: NORTHCUTT, Judge.

text:
    Truman McGILL and Margo McGill, Appellants, v. MARTIN PEREZ and DION’S NURSERY & TRANSPORT SERVICES, INC., Appellees.
    No. 2D10-1162.
    District Court of Appeal of Florida, Second District.
    May 6, 2011.

      Timothy B. Sanders and Dean Burnetti of Burnetti, PA, Tampa, for Appellants.
    Mark B. Yeslow of Yeslow & Koeppel, Fort Myers, for Appellees.
   NORTHCUTT, Judge.

Truman' McGill and his wife, Margo, sued Martin Perez and Dion’s Nursery and Transport Services for damagés suffered in a traffic accident. Perez and Dion’s Nursery moved for summary judgment on the issue of their negligence. A general magistrate heard their motion and recommended that it be granted. The circuit court adopted the magistrate’s recommendation and entered final summary judgment in favor of the defendants. We reverse.

The traffic accident involved two commercial truck drivers. Mr. McGill was driving a tractor-trailer with a full load, and Mr. Perez was driving a truck pulling a trailer loaded with mulch for his employer, Dion’s Nursery. Mr. McGill was driving south in the right-hand lane of U.S. 27 and had the right of way. Mr. Perez was at a stop sign on a side road from which he intended to turn right and proceed south on U.S. 27. In his deposition he acknowledged seeing the headlights of a vehicle driving south on U.S. 27. But he believed that he had time to safely pull onto the main road. Mr. Perez turned right, into the merge lane and then moved into the right-hand, southbound lane of U.S. 27. Mr. McGill’s truck rear-ended him.

Mr. Perez and Dion’s Nursery moved for summary judgment as a matter of law based on a rebuttable presumption that, in a rear-end collision, the following driver is negligent. See Guile v. Boggs, 174 So.2d 26 (Fla.1965). They claimed that the McGill’s could present no facts that would overcome this presumption. The McGill’s filed a response disputing somé of the facts recited in the defendants’ motion and asserting facts that might establish Mr. Perez’s negligence. The issue before us, then, is whether the magistrate and the circuit court erred in determining that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Shafran v. Parrish, 787 So.2d 177, 179 (Fla. 2d DCA 2001) (explaining the standard for granting a summary judgment and citing Fla. R. Civ. P. 1.510(c)). Our review of this issue is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

As is proper on a motion for summary judgment, the magistrate’s recommendation was based solely on depositions and affidavits filed in support of and in opposition to the motion. It was undisputed that this accident occurred in the early morning hours and that it was dark. The parties differed about whether fog was present and about whether the road was wet. Mr. McGill claimed that the lights were not working on Mr. Perez’s truck; Mr. Perez insisted that they were: Mr. Perez admitted that he saw the lights of Mr. McGill’s truck both when Perez was at the stop sign -and during the time he was driving in the merge lane. Mr. McGill raised facts that may call into question whether Mr. Perez failed to properly yield when he merged onto the main roadway and whether Mr. Perez was able to attain a safe and reasonable speed once he merged onto U.S. 27. In his deposition, Mr. Perez testified that he began flashing his rear lights when he realized Mr. McGill’s truck was coming up behind him. Mr. McGill claims this fact could demonstrate that Mr. Perez realized he had erred by entering the roadway before allowing Mr. McGill’s truck to pass by.

When reviewing a summary judgment, we must “draw every inference in favor of the party against whom the summary judgment was entered.” Galaxy Fireworks, Inc. v. Bush, 927 So.2d 995, 996 (Fla. 2d DCA 2006). The presumption that the following driver in a motor vehicle accident is negligent can be rebutted when that driver “produces evidence which fairly and reasonably tends to show that the real fact is not as presumed.” Guile, 174 So.2d at 28-29. In this case, disputed issues of material fact should have precluded entry of a summary judgment based on the presumption of negligence.

For example, in Itiat v. Foskey, 28 So.3d 140, 141 (Fla. 1st DCA 2010), the court noted that there were disputed issues of fact about whether the preceding driver suddenly changed lanes and reduced his speed, thereby causing or contributing to the crash. The court held that the existence of those questions precluded a summary judgment based on the presumption of negligence imposed on the following driver. See also Davis v. Chips Express, Inc., 676 So.2d 984 (Fla. 1st DCA 1996) (reversing summary judgment based on the presumption of negligence when the depositions and affidavits showed that disputed issues of fact existed about the possibility of inadequate lighting and the slow speed of the preceding truck). Cf. McCloud v. Swanson, 681 So.2d 898 (Fla. 4th DCA 1996) (holding that the trial court erred in directing a verdict in favor of. the preceding driver when the following driver presented evidence, albeit slight, that the defendant’s vehicle suddenly changed lanes and stopped unexpectedly). The depositions and affidavits filed in this case contained similar factual disputes.

Perez and Dion’s Nursery contend that Department of Highway Safety & Motor Vehicles v. Saleme, 963 So.2d 969 (Fla. 3d DCA 2007), supports their position that summary judgment was correctly entered in their favor.. We disagree. A witness at the trial in that case observed the driver of the first car proceeding across the traffic lanes, and he did not testify that the lane change appeared sudden or unexpected. Moreover, the following driver was exceeding the posted speed limit of 55 miles per hour by at least 25 miles per hour. In Sáleme, the evidence was fully developed for trial. Here, the summary judgment was based on the depositions and affidavits of the parties, and they disagreed on material issues of fact. Mr. McGill presented facts that might establish negligence on the part of Mr. Perez. In Sáleme, the testimony showed that the preceding driver was in no way at fault in the accident.

Moreover, even when a following driver cannot overcome the presumption of his own negligence, evidence showing that the lead driver may have been negligent as well presents jury issues of shared liability and apportionment of damages. See Sims v. Cristinzio, 898 So.2d 1004, 1007 (Fla. 2d DCA 2005) (quoting Jefferies v. Amery Leasing, Inc., 698 So.2d 368, 370-71 (Fla. 5th DCA 1997)); see also McCloud, 681 So.2d at 900 (“[wjhere there is at least some evidence of negligence on the part of the lead car driver, the issue of fault should be resolved by the jury.”). Here, if facts developed in the affidavits and depositions could be read to show negligence on Mr. McGill’s part, they also could point to negligent actions by Mr. Perez. As such, according to Sims, the dispute should be presented to a trier of fact.

We reverse the summary final judgment entered in favor of Mr. Perez and Dion’s Nursery. Our resolution of this issue renders the McGills’ second issue, concerning the magistrate’s report, moot. We remand for further proceedings in the circuit court.

Reversed and remanded.

CASANUEVA, C.J., and KHOUZAM, J., Concur.


text:
    In re Dennis R. WHALEN.
    No. 2010-B-2124.
    Supreme Court of Louisiana.
    March 15, 2011.
    Charles Bennett Plattsmier, G. Fred Ours, Baton Rouge, for Applicant.
    Dennis R. Whalen, Baton Rouge, for Respondent.
   PER CURIAM.

| )This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Dennis R. Whalen, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

By way of background, Bernard Kannon died on February 17, 1996. Mr. Kannon’s last will and testament named Jack Menzie and Frank Dobson as co-executors of his estate. Mr. Kannon’s succession was opened in the 19th Judicial District Court for the Parish of East Baton Rouge under docket number 63,314.

Mr. Dobson and Mr. Menzie were confirmed as co-executors of Mr. Kannon’s succession on March 8, 1996 and April 19, 1996, respectively. In the meantime, an April 2, 1996 court order authorized Mr. Dobson, as the co-executor, or his attorney to sell any motor vehicles of the succession or of businesses operated by the succession. An April 3, 1996 order authorized Mr. Dobson or his attorney to pay the succession’s urgent debts, specifically three mortgage notes and “priority court costs and law charges as they accrue without delay, advertisement, or further orders of the Court.” This order presumably permitted Mr. Dobson or his attorney to pay attorney’s fees without advertisement or prior court approval, which would normally be required by La.Code Civ. P. arts. 8801 and 3302. Finally, an April 9, 1996 order |2authprized Mr. Dobson, as the co-executor, to continue to operate the decedent’s various businesses.

Subsequently it was decided that Mr. Dobson and Mr. Menzie should be replaced as co-executors. The co-executors and the decedent’s surviving spouse and children filed a motion requesting that Jarnes Dendy, a Baton Rouge attorney, be appointed as the executor. Respondent was the attorney for Mr. Dendy. The May 2, 1996 order appointing Mr. Dendy authorized him to continue to operate the decedent’s various businesses in accordance with the April 9, 1996 order and to sell the motor vehicles in accordance with the April 2, 1996 order. However, no reference was made to the April 3,1996 order authorizing payment of the promissory notes and priority court costs and law charges.

Thereafter, between 1996 and 2007, respondent and Mr. Dendy collected from the succession fees and costs totaling $105,731.31 for respondent and $187,422.57 for Mr. Dendy. No court approval was obtained to pay these fees and costs. Mr. Dendy died on October 3, 2008.

DISCIPLINARY PROCEEDINGS

In June 2009, the ODC filed formal charges against respondent, alleging he violated the following provisions of the Rules of Professional Conduct: Rules 1.5 (charging an unreasonable fee), 1.15 (safekeeping property of clients or third persons), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent answered the formal charges, denying any misconduct. This matter then proceeded to a formal hearing on the merits.

| aHearing Committee Report

After reviewing the testimony and the evidence presented at the hearing, the hearing committee made numerous factual findings, including a finding that Mr. Den-dy had no authority to pay attorney’s fees to respondent without seeking court approval. The committee reasoned that this was so because no legal authority had been presented to it by the parties “that would permit an inference or ruling that the April 3, 1996 court order was intended to apply to a successor executor.” Moreover, the committee found respondent was fully aware that Mr. Dendy had not filed any motions for court approval to pay attorney’s fees, as he had received copies of letters sent to Mr. Dendy by the legatees questioning the payments. He nonetheless failed to take any action to address these concerns and continued to bill the succession for attorney’s fees and accept payment therefor. Based on these factual findings, the committee determined respondent violated Rules 1.5, 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct;

The committee found respondent knowingly violated duties owed to the legal profession by failing to obtain court approval for payment of his attorney’s fees, causing injury to the succession and the legal system. After considering the ABA’s Standards for Imposing Lawyer Sanctions and the court’s prior jurisprudence, the committee determined the baseline sanction is suspension.

In aggravation, the committee found the following: a dishonest or selfish motive, a pattern of misconduct, multiple (repetitive) offenses,' refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1962). The committee also recognized the following mitigating factors: absence of a prior disciplinary record, a cooperative attitude toward the proceedings,, and character or reputation.

pBased on the findings set forth above, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee also recommended respondent make restitution as determined by the court in the succession proceedings.

Respondent filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After reviewing the matter, .the disciplinary board determined the hearing committee’s factual findings are supported by the record and are not manifestly erroneous; Accordingly, the board adopted those findings.

Based oh its independent review of the record, the board agreed with the committee that respondent violated Rules 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. The board determined respondent did not violate Rules 1.5 or 1.15, specifically noting with respect to Rule 1.5 that the committee’s finding of a violation based upon Mr. Dendy’s failure to obtain court approval for the payment of attorney’s fees requires an overly-broad reading of the rule. However, the board indicated such action may implicate other provisions of the Rules of Professional Conduct, such as Rule 8.4.

The board found respondent knowingly, if not intentionally, violated duties owed to the legal system and the legal profession. Respondent’s ' misconduct caused actual harm to Mr. Kannon’s succession and the legal system. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined respondent’s conduct warrants a period of suspension or disbarment. The board adopted the aggravating and mitigating factors found by the committee.

|fiAfter also considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for two years. The board further recommended that respondent be required to place in the registry of the court the sum of attorney’s fees he had received, and that he be required to make a proper application for the payment of any fees or costs to which he is entitled.

Both respondent and the ODC filed an objection to the disciplinary board’s report and recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So,2d 150.

While the ODC has charged various professional violations, the crux of this matter is whether respondent, the attorney for the executor of a succession, acted improperly by receiving-payments for attorney’s fees when he knew the executor had not applied for court authority to make the payments. A court order of April B, 1996 allowed the executor at that time, Mr. Dobson, to pay succession debts and attorney’s fees without advertisement or prior court approval. However, when Mr. Dob-son was | (¡replaced as executor by respondent’s client, Mr. Dendy, the order making the appointment did not reference the April B, 1996 order, though it referenced other court orders in the matter. As the ODC conceded at oral argument, the formal charges against respondent survive or fall on whether Mr. Dendy was similarly authorized to pay succession debts and attorney’s fees without advertisement or prior court approval.

Both sides present plausible arguments in this regard. The ODC points to the fact that the May 2, 1996 order appointing Mr. Dendy does not reference the April 3,1996 order, though it referenced the April 2, 1996 and April 9, 1996 orders, as proof that Mr. Dendy did not possess the authority which was granted to Mr. Dobson. The ODC argues that Mr. Dobson’s authority was specific as to him, and did not allow for any other executor or successor executor to be exempt from the procedures set forth in La.Code Civ. P. art. 3301 et seq. The ODC also argues that respondent, as Mr. Dend/s attorney, unreasonably relied on his interpretation of the April 3, 1996 order, because respondent was aware that an attorney for one of the legatees had raised concerns about the lack of accountings and the authority of Mr. Dendy. The ODC further points out that Mr. Dendy, in his deposition obtained before he died, cited to an unrecorded oral authorization from the trial judge (to the effect that the succession should be “run like a business”) as exempting him from the normal procedures required of the executor, whereas respondent relied on his interpretation of the April 3rd order as granting Mr. Dendy such authority.

Respondent, on the other hand, points out that he offered testimony at the formal charge hearing from an attorney specializing in succession matters. This attorney opined that the April 3, 1996 order would carry over to successor executors. Respondent similarly points to the testimony of Mr. Dobson’s attorney, who indicated |7he believed the authority granted in the April 3rd order would continue over to the successor executor unless the order were revoked. Additionally, respondent notes that the ODC does not contest as improper Mr. Dendy’s payment of the mortgage notes, as authorized in the April 3rd order, or other law costs, but instead challenges only the costs paid to Mr. Dendy and to respondent without prior court approval. Respondent therefore contends the ODC has not met its burden of proving the April 3rd order did not apply to Mr. Dendy as a successor executor and that Mr. Dendy was required to otherwise follow the procedures set forth in La.Code Civ. P. art. 3301 et seq.

We find respondent raises a credible argument that the ODC has not satisfied its burden of proof in this disciplinary proceeding. The hearing committee specifically rejected the testimony of respondent’s expert witness, and apparently the testimony of Mr. Dobsón’s attorney, to conclude the April 3rd order did not apply to Mr. Dendy as successor executor. The committee acknowledged that there was no codal authority or jurisprudence on the issue of the effect of the order, but reasoned that respondent'had fáiled to show that Mr. Dendy had the same authority granted to Mr. Dobson in the April 3rd order. However, this determination by the committee improperly shifted the burden of proof to respondent, rather than hold the ODC to the burden it bears in proceedings seeking discipline. See Supreme Court Rule XIX, § 18(D). The record of this matter reveals that the ODC has not shown by clear and convincing evidence that Mr. Dendy was not authorized by virtue of the April 3rd order to pay attorney’s fees without publication and pri- or court approval.

| ¡(Therefore, as the ODC has failed to prove its case against respondent, we will dismiss the formal charges in their entirety.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the formal charges against respondent, Dennis R. Whalen, be and hereby are dismissed.

      . We do not decide as a matter of law whether an order authorizing one executor to pay attorney's fees “without delay, advertisement, or further orders of the Court” can be deemed to apply to a successor executor. Rather, we simply conclude that based upon the record before us in this disciplinary proceeding, the ODC has failed to meet its burden of proving that Mr. Dendy did not possess the same authority as that previously granted to Mr. Dobson.