author: THOMAS, J.

text:
    A.H., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-1466.
    District Court of Appeal of Florida, First District.
    June 10, 2011.
    Shawn M. Risen of Risen & Ryan, P.A., Ft. Walton Beach, for Appellant.
    Ward L. Metzger, Appellate Counsel, Children’s Legal Services, Jacksonville; Kelley Schaeffer, Guardian ad Litem Program, Tavares, for Appellee.
   THOMAS, J.

Appellant, father of A.P., appeals the trial court’s termination of his parental rights and raises two issues: 1) the trial court erred in admitting child hearsay evidence based on a failure to properly comply with section 90.803(23), Florida Statutes; and 2) the trial court erred in terminating his parental rights pursuant to section 39.806(l)(d)2, Florida Statutes, based on the court’s determination that he is a sexual predator. We affirm as to the first issue without further comment. We reverse as to the second issue, because Appellant had not been designated a sexual predator by the sentencing court in a criminal proceeding before the commencement of termination proceedings. Thus, the dependency court lacked the authority to assign this designation. Although we remand for an amended judgment, we affirm the trial court’s judgment terminating Appellant’s parental rights on the alternative basis that Appellant abused A.P.

Factual Background

A.P., who was five years old at the time of the termination of parental rights (TPR) hearing, lived in Oregon with her mother and Appellant, the child’s biological father. In June 2010, A.P. and her mother moved to Florida to live with A.P.’s maternal grandmother. AP.’s mother died one month later, and the Department of Children and Families (DCF) intervened. Upon investigating the matter, DCF learned Appellant was incarcerated in Oregon on a drug-related charge. DCF also learned that Appellant was convicted in Oregon in 2006 of one count each of attempted unlawful sexual penetration and attempted sexual abuse. Both crimes involved an unrelated minor. No court in Oregon designated Appellant as a sexual predator, although such a designation was available under Oregon law.

During an initial interview with a DCF investigator, A.P. disclosed that Appellant abused her. After completing its investigation, DCF filed an expedited petition to terminate Appellant’s parental rights on several grounds: Appellant’s incarceration; his prior convictions for sex-related crimes in Oregon; the 10-year probationary requirement to avoid contact with any minors under the age of 18 without approval of the court or his probation officer connected to the Oregon convictions; and his abuse of A.P. based on her statement to the DCF investigator.

During the TPR hearing, DCF claimed that Appellant’s parental rights should also be terminated because Appellant qualified as a sexual predator under Oregon law, based on his Oregon sex crime related convictions.

In its final judgment, the trial court found that Appellant was a sexual predator within the meaning and intent of section 39.806(l(d)(2), Florida Statutes, based on Appellant’s abuse of the child and his Oregon sex-related crime convictions. We agree with Appellant that this was error. Although Appellant was incarcerated at the time of the TPR hearing, he had not previously been designated as a sexual predator by a court in a criminal sentencing proceeding, and under Chapter 89, Florida Statutes, the trial court lacked the authority to designate Appellant as a sexual predator while considering a parental termination matter. We note that although DCF urged the trial court to find Appellant is a sexual predator and terminate his parental rights on that ground, it now properly concedes that the trial court’s judgment on this issue was error.

Analysis

One of the statutory bases the trial court cited for terminating Appellant’s parental rights was section 39.806(l)(d)2, Florida Statutes. Pursuant to this statute, terminating parental rights is authorized when “the parent of a child is incarcerated in a state or federal correctional institution” and “[t]he incarcerated parent has been determined by the court to be ... a sexual predator as defined in s. 775.21.” This statute is also known as the “Florida Sexual Predators Act,” which is part of the Florida Criminal Code, and provides certain ramifications if a person is designated a sexual predator.

Two phrases in section 39.806(l)(d)2. are of particular importance here: “has been determined” and “by the court.” The first phrase raises the question of when that determination was made; the second phrase raises the issue regarding which court makes that determination.

As noted by the Florida Supreme Court in State v. Robinson, 873 So.2d 1205, 1213 (Fla.2004), “[t]he Act provides for a hearing before an individual is designated a sexual predator,” and section 775.21(5) requires that the designation be made at a sentencing hearing. Sentencing, of course, occurs in the context of criminal cases, whereas “dependency proceedings are civil in nature.” S.B. v. Dep’t of Children & Families, 851 So.2d 689, 691 (Fla.2003). In our judgment, therefore, the answer to the two questions can be summarized as follows: the determination of an incarcerated parent’s sexual predator status for purposes of section 39.806(l)(d)2. must have been made before a TPR action is filed, and this designation must have been assigned by a sentencing court proceeding under the Florida Criminal Code. We are not alone in this assessment.

The Fourth District was confronted with a similar case in W.W. v. Department of Children & Families, 811 So.2d 791 (Fla. 4th DCA 2002). There, as here, “[t]he trial court ... concluded that appellant’s parental rights could be terminated, under section 39.806(l)(d)2” because the court found the appellant was a sexual predator. Id. at 792. The Fourth District explained that the trial court based its determination on the provisions in Florida Statutes section 775.21(4)(a)l.b. Id. DCF conceded that this section was “not applicable because it requires prior convictions which do not exist in this case.” Id. The court rejected, however, DCF’s argument that the appellant met “the definition of a sexual predator found in section 775.21(4)(a)l.a.,” and held that statute did not apply “because it requires a current conviction of a capital, life or first degree felony. Appellant’s conviction was of a felony of a lesser degree.” Id.

The court continued:

A more basic problem with DCF’s assertion that appellant is a sexual predator is that section 39.806(l)(d)2, Florida Statutes (2001), on which DCF relies, provides that parental rights may be terminated when “[t]he incarcerated parent has been determined by the court to be ... a sexual predator as defined in s. 775.21.” The term “sexual predator” as defined in section 775.21 is a legal classification which results from written findings made by the sentencing court in the criminal case. § 775.21(5), Fla. Stat. (2001). In the present case, appellant was not designated a sexual predator by the criminal court nor were any of the other procedures set forth in section 775.21 followed.

Id. at 792-93 (emphasis added).

The same scenario exists here. Similarly, we hold that the trial court erred by terminating Appellant’s parental rights pursuant to the sexual predator provision in section 39.806(l)(d)2, because he had not been designated a sexual predator by the Oregon state court that sentenced him for his prior sex-related crimes.

We also hold that a court presiding over a case arising out of Chapter 39 lacks the authority to designate a parent as a sexual predator, or to terminate parental rights based on such an invalid determination. In so holding, we find persuasive Judge Farmer’s special concurring opinion in WjW., in which he observed:

[One] thing to consider about the [section 39.806](l)(d)2 text lies in the term, “the court.” Under the definition in section 39.01(18) “the court,” unless otherwise expressly stated, refers to the court exercising power in a chapter 39 proceeding. Yet there is no provision in the Criminal Code or in chapter 39 for a court hearing a TPR case arising under chapter 39 to make a sexual predator designation-except in subsection (l)(d)2. But under subsection (l)(d)2, as we have already seen, the sexual predator designation must have been already made by “the court” before a TPR case is even filed. If the determination must have been already made by a court before the TPR case is filed, this is obviously an instance where the Legislature has “otherwise expressly stated” that a court other than the chapter 39 court should do something. Hence it cannot possibly be the TPR court that is to make the sexual predator designation.

811 So.2d at 795.

Because the trial court’s judgment included other legally sufficient grounds for terminating Appellant’s parental rights, however, we need not reverse as to the trial court’s alternative basis for terminating Appellant’s parental rights.

Conclusion

For the foregoing reasons, we reverse the trial court’s judgment and remand with instructions that the trial court render an amended judgment consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

PADOYANO and LEWIS, JJ., concur.

      . This should not be read as precluding DCF from amending a TPR petition if the appropriate court makes such a determination before the TPR hearing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clifford HOPKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2138.
    District Court of Appeal of Florida, First District.
    June 10, 2011.
    Clifford Hopkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    Edward DUNKLE, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-2415.
    District Court of Appeal of Florida, First District.
    June 10, 2011.
    Edward Dunkle, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    Jorge A. NUNEZ, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-2451.
    District Court of Appeal of Florida, First District.
    June 10, 2011.
    Jorge A. Nunez, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Dep’t of Corr., 727 So.2d 1108 (Fla. 1st DCA 1999).

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    Joseph Henry TEALE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2760.
    District Court of Appeal of Florida, First District.
    June 10, 2011.
    Joseph Henry Teale, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    Paul Kenneth PRIDGEON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2826.
    District Court of Appeal of Florida, First District.
    June 10, 2011.
    Paul Kenneth Pridgeon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    Emily McDONALD, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and CMS Mechanical, Appellees.
    No. 1D11-0823.
    District Court of Appeal of Florida, First District.
    June 13, 2011.
    Emily McDonald, pro se, Appellant.
    Louis A. Gutierrez, Assistant General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Emily McDonald appeals an order of the Unemployment Appeals Commission affirming an appeals referee’s decision finding her to be disqualified from the receipt of unemployment compensation benefits. In a motion to relinquish jurisdiction, the Unemployment Appeals Commission forthrightly acknowledges that the proceedings before the referee did not fully comport with the requirements of an administrative rule governing the matter. The Commission therefore requests that the court relinquish jurisdiction to it for purposes of issuing an order remanding the case to the referee for further proceedings. In accordance with this request, the final order of the Unemployment Appeals Commission being appealed herein is reversed, and the matter is remanded for further proceedings.

REVERSED and REMANDED.

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


text:
    Lori TAPPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-947.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Lori Tapper (hereinafter “defendant”), appeals revocation of her probation after the trial court found that she violated its terms by using intoxicants to excess not prescribed by a physician. We find no abuse of discretion in the trial court finding and determining valid grounds to revoke defendant’s probation. However, a formal, written order of revocation of probation is required pursuant to Florida Rule of Criminal Procedure 3.995. See Green v. State, 23 So.3d 820, 821 (Fla. 4th DCA 2009). We affirm the revocation of probation and subsequent sentence, but remand the case for the trial court to enter a written order of revocation of probation.

MAY, DAMOORGIAN and CONNER, JJ., concur.


text:
    James SABATINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3779.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Williams v. Moore, 829 So.2d 920 (Fla.2002) Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976).

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


text:
    Donald BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4895.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2011.
    Donald Baker, Hollywood, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. Further, we modify our order of September 9, 2009, which denied appellant’s coram vobis petition “without prejudice to refile after the present appeal is disposed of.” The petition is herein simply denied. A petition for coram vobis once could be used to collaterally challenge a conviction in appellate court for which petitioner was no longer in custody. Co-ram vobis relief (brought in appellate court) and coram nobis relief (brought in trial court) are no longer necessary or available in Florida. Rule 3.850 has supplanted both coram nobis and coram vobis. See Wood v. State, 750 So.2d 592, 594 (Fla.1999); see also Bates v. State, 887 So.2d 1214, 1217 (Fla.2004).

POLEN, STEVENSON and HAZOURI, JJ., concur.


text:
    Fidel FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-567.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Nicholas A. Reed and Michael A. Vera, Certified Legal Interns, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Fidel Fernandez appeals a withheld adjudication and sentence of probation for possession of cannabis with intent to sell. The defendant maintains that the trial court erred in denying his motion to suppress the . evidence and his statements based on the unauthorized entry onto his residential property by law enforcement officers. Because we find that the entry was unlawful, we reverse the order denying the suppression motion.

The police narcotics bureau received an anonymous tip that a home in southwest Miami-Dade County was being used as a marijuana hydroponics lab. The police decided to investigate the house. When the police arrived at the house, they set up surveillance around the perimeter of the property.

The one-acre lot was completely enclosed by tall fences, and it was hidden from view by a tall hedge. The house was set back into the lot and not visible from the street. Access to each end of the u-shaped driveway was obstructed by a closed metal gate that could be opened by a remote control device in the defendant’s vehicle near the house and inside the fence. The mailbox was outside the fenced perimeter. As the law enforcement officers arrived, there was no opening into the property.

At some point during the surveillance, an officer with a view of the residence notified others that the defendant had left the house and was getting into the car in the driveway. When the defendant used the remote control device inside the car to open the driveway gate to leave, Sergeant Falcon slipped inside the property through the gate as it opened. Sergeant Falcon waived to Detective Murillo to enter the property. Murillo drove his car into the driveway, “a couple of feet” from the defendant’s ear, blocking the defendant’s exit through the gate.

Sergeant Falcon walked up to the defendant’s car and told the defendant that he needed to talk to him. Detective Murillo also walked up to the defendant’s car and two other officers walked through the open gate into the property. The defendant got out of his ear and Sergeant Falcon asked the defendant for consent to search the house. Two officers and the defendant walked back toward the house. Once on the porch, the defendant sat down and asked the Sergeant for clarification of what he was asking. The Sergeant said they just wanted consent. The defendant asked for a few moments to collect his thoughts. The defendant refused to sign a consent form but he opened the door for the police. Once inside, the police found 144 marijuana plants.

The state charged the defendant with possession of cannabis with intent to sell. The defendant filed a motion to suppress the evidence, arguing that the police had trespassed onto the defendant’s property, that the police had no warrant, there was no valid consent, and there were no exigent circumstances to justify the entry. The defense asserted that this illegal entry tainted the remainder of the encounter, requiring suppression of the evidence seized in the house and all of the defendant’s subsequent statements. The trial court denied the suppression motion. The defendant pled to the charge, reserving his right to appeal this denial.

We reverse the denial of the suppression motion. When Sergeant Falcon slipped into the gate that serendipitously opened while the police were surveilling the property, he committed a trespass onto the defendant’s property. The consent arguably obtained from the defendant after the trespass did not cure the taint of the illegality.

Unlawful Entry

“One seeking the exclusion of evidence as the fruit of an unreasonable search must demonstrate, first, that the government perpetrated the intrusion that led to the discovery of incriminating information.” State v. Butler, 1 So.3d 242, 246 (Fla. 1st DCA 2008). In this case, it is undisputed that the police committed the intrusion in question. The next inquiry is whether the defendant had “a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” United States v. Dunn, 480 U.S. 294, 316, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).

A yard adjacent to a residential dwelling, particularly one blocked from view from the street, “is clothed with a reasonable expectation of privacy from unreasonable governmental intrusion.” Potts v. Johnson, 654 So.2d 596, 599 (Fla. 3d DCA 1995) (citing Morsman v. State, 360 So.2d 137, 138 (Fla. 2d DCA 1978)). “A police officer may be held liable in trespass for entering upon the property of another-” Potts, (citing Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA 1980)). There is unrebutted evidence that this defendant had a subjective expectation of privacy in the curtilage of his home. “Putting up fences, and affirmatively taking express steps to exclude the public or other persons from using the area, seeing into it, or gaining access to the area ... are ways to establish such a subjective manifestation.” Ratcliff v. State, 783 So.2d 1099, 1101 (Fla. 5th DCA 2001); Ruiz v. State, 743 So.2d 581 (Fla. 4th DCA 1999). This defendant had taken great measures to ensure his privacy; the house was surrounded by barriers obstructing a view of the property. This enclosed area constitutes curtilage that falls under the same constitutional protections as the residence it surrounds.

Section 810.08(1), Florida Statutes (2008), specifies that an unauthorized entry into a “structure” is a trespass and a second-degree misdemeanor. Section 810.011(1), Florida Statutes (2008), defines “structure” to mean “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” Webster’s Third New International Dictionary defines “curti-lage” as “a yard, courtyard, or other piece of ground included within a fence surrounding a dwelling house.”

The state argues, however, that Sergeant Falcon was free to enter the premises when the gate opened. That argument is not persuasive because the momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. Certainly, a policeman may enter the curtilage surrounding a home in the same way as a salesman or visitor could. Potts, 654 So.2d at 599 (citing State v. Morsman, 394 So.2d 408, 409 (Fla.1981)). But those are not the facts here. No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors. This was not an opening to invite the public into the area. Here, there was effectively a trespass onto the property.

This case is also distinguishable from the “knock and talk” cases. Here, as in United States v. Quintana, 594 F.Supp.2d 1294 (M.D.Fla.2009), this exception will not apply because Sergeant Falcon did not enter the property as a public person would have, through an opening created for that purpose. Nothing in this record would support a finding that the officers “approached the residence ‘just [as] any private citizen [could].’ ” Quintana, 594 F.Supp.2d at 1302 (citing United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir.2006)). In Quintana, one law enforcement officer jumped a fence surrounding a home and unlocked the gate to allow other officers into the property. The district court found those “actions were beyond what would reasonably be expected of any private citizen such as a mail deliverer or salesperson. Any ‘knock and talk’ exception to the Fourth Amendment warrant requirement did not apply to the troopers’ initial entry onto the paved area near the residence.” Id. Compare State v. Triana, 979 So,2d 1039 (Fla. 3d DCA 2008) (finding no constitutional infirmity in a seizure that followed a consensual encounter where the police spoke with defendant from outside of the defendant’s gate and the defendant agreed to the search and opened gate to allow police entrance); Ratcliff v. State, 783 So.2d 1099 (Fla. 5th DCA 2001) (finding no constitutional infirmity in police accessing rear area of business that was open to the public and was not obstructed by any means). The entry in this case violated the defendant’s Fourth Amendment rights and any evidence seized after such entry must be suppressed.

Validity of Subsequent Consent

The defendant’s subsequent consent did not remedy the effect of the illegal entry. There was no break in the chain of events between the illegal entry and the procuring of the consent to the search. When a consent to search is obtained after illegal police activity, such as the illegal entry here, “the unlawful police action presumptively taints and renders involuntary any consent to search.” Gonzalez v. State, 578 So.2d 729, 734 (Fla. 3d DCA 1991). The taint is only dissipated if “the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint.” Diaz v. State, 34 So.3d 797, 804 (Fla. 4th DCA 2010) (citing Navamuel v. State, 12 So.3d 1283, 1286 (Fla. 4th DCA 2009)). See State v. Sakezeles, 778 So.2d 432, 434 (Fla. 3d DCA 2001) (finding that state bears the burden of showing that the taint is dissipated by subsequent events). Nothing in this record meets this burden.

We reverse the order denying the defendant’s suppression motion. As the state properly agreed at the suppression hearing, that motion was dispositive of the case against the defendant. Therefore, this reversal requires that the trial court, on remand, dismiss the case. Gonzalez.

Reversed and remanded with directions.

      . The defendant testified that the property was posted with "no trespassing” signs, but the law enforcement witnesses testified that they saw no such signs. For purposes of our review here, we assume that the trial court found the police officers' testimony on this point more credible.

      . Webster’s Third New Int'l Dictionary 558 (1st ed. 1986).


author: SCHWARTZ, Senior Judge.

text:
    Rodney S. MUMFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2621.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Carlos Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

      Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

In 2001, the appellant was sentenced to life as a violent career criminal. In 2002, however, the trial court (almost certainly incorrectly) vacated the VCC designation and imposed instead a “lesser” sentence under the habitual violent felony offender (“HVFO”) statute. The State did not appeal from that order. Notwithstanding, in 2010, the trial court vacated the HVFO sentence which had been imposed in 2002 and re-instated the more severe VCC sentence, see Clines v. State, 912 So.2d 550 (Fla.2005)(discussing consequences of various statutory designations), on the ground that the 2002 order vacating that sentence- was erroneously entered. That order is now on appeal, and we are compelled to reverse it because the vacation of the less severe HVFO sentence and the re-imposition of the VCC sentence clearly violated the defendant’s double jeopardy rights. It is established law that unless the State appeals, even an objectively erroneous sentencing order may not subsequently be increased or otherwise affected to the detriment of the defendant. See Charles v. State, 59 So.Bd 291 (Fla. Bd DCA 2011); Gardner v. State, 30 So.3d 629, 632 (Fla. 2d DCA 2010); Delemos v. State, 969 So.2d 544, 550 (Fla. 2d DCA 2007). Pate v. State, 908 So.2d 613, 615 (Fla. 2d DCA 2005), applies these rules to a factual and legal situation very similar to this. As the appellant correctly argues:

In Pate, the trial court’s written order granted the defendant’s motion to correct an illegal sentence and reduced his sentence. The trial court later issued a second order denying the motion to correct sentence and reinstating the original sentence. The Second District concluded this violated the constitutional protection against double jeopardy. The court agreed that the entry of the first order granting the defendant’s motion to correct an illegal sentence constituted reversible error based on the State’s lack of notice and opportunity to be heard with respect to the entry of that order. Pate, 908 So.2d at 615. However, the court held that the State was required to challenge that sentencing error by direct appeal, and having failed to do so double jeopardy principles barred the trial judge from reinstating the sentence originally imposed. Id.; see also Delemos, 969 So.2d at 550 (“[E]ven if the sentence on count 5 were illegal for failing to include the minimum mandatory term, this court has previously held that double jeopardy bars an increase in a sentence once it is imposed and the defendant begins serving it, at least in the absence of a proper appeal, ‘even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court’s and parties’ intentions at sentencing.’ .... Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed.”)

For these reasons, the 2010 sentencing order under review is vacated and the cause remanded for proceedings consistent herewith.

      . The 2002 court incorrectly determined that the defendant’s prior convictions for burglary did not qualify for designation under the VCC statute. See Curi v. State, 36 So.3d 853 (Fla. 3d DCA 2010); Ubilla v. State, 8 So.3d 1200 (Fla. 3d DCA 2009), and cases cited therein.


author: PER. CURIAM.

text:
    Charles Edward BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-781.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.
    James S. Purdy, Public Defender, and Brynn Newton and Stephanie H. Park, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER. CURIAM.

Charles Edward Burns appeals from his conviction and sentence on a charge of burglary of an occupied dwelling. He argues that the trial court erred by proceeding to trial without conducting a hearing to determine his mental competence after entering an order invoking the competency proceedings set forth in Florida Rule of Criminal Procedure 3.210. See Vestal v. State, 50 So.3d 733, 735 (Fla. 5th DCA 2010) (having concluded that a “mental examination of [defendant] was necessary to determine if she was competent to proceed ...” the trial court was required to follow the prescribed procedure and hold a competency hearing) (citations omitted). We agree, reverse the conviction and sentence, and remand for a new trial contingent upon a determination that Burns is competent to proceed. Id.; see also, Maxwell v. State, 974 So.2d 505 (Fla. 5th DCA 2008); Cochran v. State, 925 So.2d 370 (Fla. 5th DCA 2006); Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003).

REVERSED AND REMANDED.

PALMER, LAWSON, and EVANDER, JJ., concur.


author: PALMER, J.

text:
    Christopher Thomas HAYS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1406.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Christopher Thomas Hays (defendant) appeals his judgment and sentence entered by the trial court on the charge of failing to comply with sex offender reporting requirements. Determining that the trial court did not err in entering the judgment, we affirm same. However, determining that the trial court abused its discretion by failing to renew the offer of assistance of counsel to the defendant at the sentencing stage, we vacate the defendant’s sentence and remand for resentencing.

In this case, the defendant represented himself during his trial. Following the entry of the jury’s verdict, the trial court entered judgment and proceeded immediately to sentencing without renewing an offer of assistance of counsel to the defendant.

This court has held:

[I]f a defendant waives the right to counsel at any stage of the criminal proceedings, the trial court must renew the offer of assistance of counsel at each subsequent stage of the proceedings. Sentencing is a critical stage in criminal proceedings; and, even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel.

Hardy v. State, 655 So.2d 1245, 1247-48 (Fla. 5th DCA 1995) (vacating and remanding the defendant’s sentence for re-sentencing because the trial court failed to renew its offer of assistance of counsel at sentencing); see also Fla. R. Crim. P. 3.111(d)(5) (stating: “[I]f a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”).

Accordingly, the defendant’s sentence is vacated and this matter is remanded for resentencing.

Judgment AFFIRMED, Sentence VACATED; and case REMANDED for RE-SENTENCING.

ORFINGER and COHEN, JJ„ concur.

      . See § 943.0435, Fla. Stat. (2008).


text:
    Lawrence W. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2394.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.

      Lawrence W. Davis, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Lawrence Davis timely appeals the circuit court’s summary denial of his motion seeking return of property allegedly seized from him when he was arrested for sale and delivery of cocaine within 1,000 feet of a school. Davis contends that his motion was in proper form and a summary denial without any record attachment was improper. We agree and reverse and remand for further proceedings.

Davis pled no contest to the sale of cocaine and was sentenced to ten years in prison. His judgment and sentence were entered on January 10, 2008. On May 27, 2010, Davis filed his motion for the return of $990 that was taken from him at the time of his arrest. Davis’ motion alleges that the cash was his, it was not being held as the fruit of any criminal activity, and it was not being held as evidence. The lower court summarily denied Davis’ motion without attaching any portions of the record showing that the property was seized pursuant to a lawful investigation or held as evidence. This was error. See White v. State, 926 So.2d 473 (Fla. 2d DCA 2006); Burden v. State, 890 So.2d 566, 567 (Fla. 2d DCA 2005); see also Cloud v. State, 801 So.2d 964 (Fla. 2d DCA 2001); McKinnon v. State, 752 So.2d 134, 135 (Fla. 2d DCA 2000). The lower court’s failure to attach portions of the record supporting its findings requires reversal and remand. See Monserrate v. State, 25 So.3d 1292 (Fla. 2d DCA 2010).

If the lower court again summarily denies Davis’ motion, it must attach portions of the record demonstrating the currency was seized and held as evidence by the law enforcement agency involved or that it was seized pursuant to an investigation and was in the custody of the court clerk. Otherwise, the court must hold an eviden-tiary hearing and entertain the motion on its merits. See Cloud, 801 So.2d at 964.

REVERSED and REMANDED for further proceedings pursuant to this opinion.

MONACO, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    Donald E. COLVIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2445.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.

      Donald E. Colvin, Satsuma, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Donald Colvin (defendant) appeals the order entered by the trial court modifying his probation to include electronic monitoring. The State properly concedes error. Accordingly, we strike the trial court’s modification order.

In 2003, the defendant pled nolo conten-dere to three counts of lewd and lascivious conduct. The trial court sentenced the defendant to concurrent terms of nine years’ imprisonment, followed by three years of sex offender probation. In March 2010, the defendant completed his prison term and was released. Three months later, the defendant’s probation officer sent a letter to the trial court requesting that the court modify the terms of the defendant’s probation by imposing the requirement that the defendant be subject to electronic monitoring. The trial court entered an order amending the defendant’s probation to require him to participate in the electronic monitoring program.

The defendant maintains that the trial court lacked jurisdiction to modify the terms of his probation because his sentence was entered more than sixty days before the modification order was entered. The State concedes error.

Rule 3.800(c) of the Florida Rules of Criminal Procedure provides that a trial court possesses jurisdiction to modify a legal sentence; however, such modification must occur within sixty days of the imposition of sentence. The instant modification order, which was entered more than seven years after the defendant’s sentence was imposed, is thus invalid. See Siplen v. State, 969 So.2d 1171 (Fla. 5th DCA 2007)(holding that the trial court erred in modifying the defendant’s probationary sentence because the modification order was not entered within sixty days after sentencing).

Modification order STRICKEN.

MONACO, C.J. and JACOBUS, J., concur.


text:
    Caridad M. OLIVA, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D10-2829.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.
    Caridad M. Oliva, Ocklawaha, pro se.
    Louis A. Gutierrez, Tallahassee, for Ap-pellee.
   PER CURIAM.

Caridad M. Oliva appeals an order of the Unemployment Appeals Commission affirming the appeal referee’s finding that Ms. Oliva was disqualified from receiving benefits because she was not “able to work and available for work” as required by section 443.091(l)(c)l., Florida Statutes (2010). We affirm.

The determination that an employee is, or is not, able and available for work is a question of fact. See Brown v. Unemployment Appeals Comm’n, 820 So.2d 457, 458 (Fla. 5th DCA 2002). An appeal referee’s factual determination is ordinarily presumed to be correct. Smith v. Unemployment Appeals Comm’n, 823 So.2d 873, 874 (Fla. 5th DCA 2002). Thus, if there is substantial competent evidence in the record to support the appeal referee’s findings, this Court must affirm. Brown, 820 So.2d at 458. The record before us fully supports the finding of the referee. We cannot reweigh the evidence. Accordingly, we affirm.

AFFIRMED.

ORFINGER, COHEN and JACOBUS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Brandon Lamar CULVER, Appellee.
    No. 5D10-3387.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellee.
   PER CURIAM.

The State appeals the trial court’s decision to withhold adjudication of guilt following Brandon Culver’s no contest plea to a charge of fleeing and eluding a law enforcement officer in violation of section 316.1935(1), Florida Statutes (2009).

Section' 316.1935(6) expressly prohibits the court from "withholding adjudication of guilt for any violation of section 316.1935. See State v. Warner, 50 So.3d 99 (Fla. 4th DCA 2010); State v. Scriber, 991 So.2d 969 (Fla. 4th DCA 2008) (holding trial court not permitted by statute to withhold adjudication of guilt in light of fleeing and eluding statutes express prohibition). For this reason, we reverse that portion of the sentencing order withholding adjudication and remand this matter to the circuit court for further proceedings.

REVERSED and REMANDED.

ORFINGER, COHEN and JACOBUS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Charles F. DAVIS, Appellee.
    No. 5D10-3433.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    Adam B. Reiss, Orlando, for Appellee.
   PER CURIAM.

The State of Florida appeals the probationary sentence imposed on Charles F. Davis, following his plea to a charge of aggravated battery with a deadly weapon. Davis scored a minimum sentence of 21.3 months in prison on his Criminal Punishment Code scoresheet. Over the State’s objection, the trial court departed downward, explaining that: “Given Mr. Davis’s almost complete absence of a prior record, a downward departure is appropriate in this case.... ” This is not a valid basis for departure. State v. Stephenson, 973 So.2d 1259, 1264 (Fla. 5th DCA 2008) (“The trial court lacks discretion to grant a downward departure sentence based on factors already taken into account by the sentencing guidelines.... A defendant’s prior criminal record, or lack thereof, is one such factor.”) (internal citations omitted). As the trial judge gave no other reason for imposing a departure sentence, we reverse the sentence and remand for a new sentencing hearing. See Jackson v. State, 64 So.3d 90 (Fla.2011).

REVERSED AND REMANDED FOR RESENTENCING.

PALMER, LAWSON, and EVANDER, JJ., concur.

      . If Davis’ plea was induced by the trial judge’s promise of a probationary sentence, as the record suggests, Davis must also be allowed to withdraw his plea if no valid basis for downward departure is found on remand. See State v. Jackson, 55 So.3d 682 (Fla. 5th DCA 2011).


author: COHEN, J.

text:
    UNDERWRITERS OF LLOYDS OF LONDON, etc., Appellant, v. CAPE PUBLICATIONS, INC., d/b/a Florida Today, Appellee.
    No. 5D10-3384.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.

      Alexander Muszynski, III, and Cameron E. Shackelford of Meier, Bonner, Muszyn-ski, O’Dell & Harvey, P.A., Longwood, for Appellant.
    L. Chuck Lira of Law Offices of Jack D. Evans, Tampa, for Appellee.
   COHEN, J.

The issue in this appeal is whether Underwriters of Lloyds of London (hereafter “Lloyds”) is precluded from bringing a subrogation action because Cape Publications, Inc.’s commercial lease evidenced an intent that it be considered a beneficiary or co-insured under the property and casualty insurance policy maintained by Harry and Wendy Brandon (hereafter “Bran-dons”). We review the issue de novo and affirm. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

Cape Publications leased commercial office space in a building owned by the Bran-dons. The Brandons insured the building with a property and casualty insurance policy, covering fire damage, purchased from Lloyds. As expressly provided in the lease, a portion of Cape Publications’ monthly rent was allocated to paying its pro rata share of the premiums on the Brandons’ property and casualty insurance. The lease also required Cape Publications to obtain a general liability insurance policy, naming the Brandons as co-insureds, “in an amount not less than $1,000,000 combined single limit for personal injury[,] bodily injury and property damage....” Cape Publications further agreed to indemnify and hold the Bran-dons harmless for any claim of damage or injury arising out of its negligence or use of the premises.

The Brandons subsequently submitted a claim to Lloyds after part of the premises leased by Cape Publications was damaged by fire. Lloyds paid the Brandons’ claim and, pursuant to the lease’s indemnity and hold harmless provision, demanded Cape Publications indemnify it for the loss. When Cape Publications refused, Lloyds filed suit, asserting claims for breach of contract, contractual indemnity, and common law indemnity. Cape Publications moved for summary judgment arguing that its pro rata payment of the premiums, along with other lease provisions, made it a co-insured under the Brandons’ property and casualty policy and, therefore, Lloyds could not maintain a subrogation action against its own insured. The trial court agreed and granted summary final judgment in favor of Cape Publications, citing Continental Insurance Co. v. Kennerson, 661 So.2d 325 (Fla. 1st DCA1995).

Lloyds argues the summary final judgment was improvidently granted because the lease reflects the parties’ intent to shift the risk of loss for fire damage to Cape Publications. Thus, Cape Publications cannot be considered a co-insured or intended beneficiary under the Brandons’ property and casualty insurance policy. Lloyds points to two lease provisions in support: the provision requiring Cape Publications to purchase a general liability policy naming the Brandons co-insureds, and the indemnity and hold harmless provision.

The issue raised in this appeal has been addressed in numerous decisions across the country, in the context of both residential and commercial leases. In deciding the issue, courts have adopted one of three analytical approaches: the Sutton, anti-Sutton, or case-by-case approach. Whether one approach is adopted over another is motivated by the public policy considerations underlying each. Before determining which approach this court will adopt, a brief overview is necessary.

Generally recognized as representing the majority position or “modern” trend is Sutton v. Jondahl, 532 P.2d 478 (Okla.Ct.App.1975). In Sutton, 582 P.2d at 479, the residential landlord’s insurer filed a subrogation action to recover the monies paid to the landlord for damage caused by an accidental fire started by the tenant’s son. The court held that the landlord’s insurer could not maintain a subrogation action against the negligent tenant because the “law considers the tenant as a co-insured of the landlord absent an express agreement between them to the contrary.” Id. at 482.

This conclusion was based on several legal and practical considerations and assumptions. First, the court recognized the “relational reality” that both the landlord and tenant had insurable interests: one with a fee interest and the other a posses-sory interest. Id. Second, the court assumed that the landlord passed the cost of the insurance premium onto the tenant as part of the rent payment. Id. Third, the court stated that a reality of residential renting was “[prospective tenants ordinarily rely” on the owner to procure fire insurance and, absent an agreement otherwise, “it would not likely occur to a reasonably prudent tenant that the premises were without fire insurance protection or if there was such protection it did not inure to his benefit....” Id.

Although a number of courts have adopted Sutton in toto, others have adopted its holding but advanced alternative rationales. In Tri-Par Investments, LLC v. Sousa, 268 Neb. 119, 680 N.W.2d 190, 199 (2004), the court reasoned that a “pure Sutton approach” provided legal certainty by preventing “landlords from engaging in gamesmanship when drafting leases by providing the necessary incentive for them, if they so desire, to place express subrogation provisions in their leases.” Absent such a provision, the court reasoned that insurers would pass the increased risk to the landlords in the form of higher premiums, and the landlords would increase the rent to reflect the higher premiums. The court stated: “This is almost certainly the current commercial reality.” Id.

In DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819, 822 (2002), the court concluded that Sutton represented better policy based on the “strong public policy” against economic waste. The court stated that to hold otherwise

would create a strong incentive for every tenant to carry liability insurance in an amount necessary to compensate for the value, or perhaps even the replacement cost, of the entire building, irrespective of the portion of the building occupied by the tenant. That is precisely the same value or replacement cost insured by the landlord under his fire insurance policy. Thus, although the two forms of insurance would be different, the economic interest insured would be the same. This duplication of insurance would, in our view, constitute economic waste and, in a multiunit building, the waste would be compounded by the number of tenants.

Id. at 822-23.

In addition to recognizing the rationales in Sousa and DiLullo, the court in Dattel Family Limited Partnership v. Wintz, 250 S.W.3d 883 (Tenn.Ct.App.2007), added that the Sutton approach comported with the reasonable expectations of the parties. Specifically, the court reasoned that a residential tenant who merely has a possesso-ry interest would expect the landlord to obtain insurance on the entire building. Conversely, a reasonable landlord would not expect each individual tenant to purchase insurance covering the landlord’s building. Accordingly, “all parties involved would reasonably expect a residential tenant to be considered a co-insured under the landlord’s insurance policy unless the parties had expressly agreed otherwise.” Id. at 892.

Reaching the opposite conclusion are the anti-Sutton courts. These courts hold that the landlord’s insurer may maintain a sub-rogation action against a negligent tenant who causes fire damage, unless the parties expressly or impliedly agree to the contrary. See Page v. Scott, 263 Ark. 684, 567 S.W.2d 101 (1978); Neubauer v. Hostetter, 485 N.W.2d 87 (Iowa 1992); Britton v. Wooten, 817 S.W.2d 443 (Ky.1991); Fire Ins. Exchange v. Geekie, 179 Ill.App.3d 679, 128 Ill.Dec. 616, 534 N.E.2d 1061 (1989); Zoppi v. Traurig, 251 N.J.Super. 283, 598 A.2d 19 (1990). These cases reject the assumptions and rationale underlying Sutton and adhere to the maxim that a party cannot escape liability for his negligence unless expressly disclaimed in the contract.

The case-by-case approach eschews presumptions that a tenant is or is not a co-insured of the landlord. Instead, the court examines the lease as a whole to determine the parties’ reasonable expectations as to who should bear the risk of loss when a tenant negligently damages the leased premises. See Am. Family Mut. Ins. Co. v. Auto-Owners Ins. Co., 757 N.W.2d 584 (S.D.2008); Rausch v. Allstate Ins. Co., 388 Md. 690, 882 A.2d 801 (2005); Union Mut. Fire Ins. Co. v. Joerg, 175 Vt. 196, 824 A.2d 586 (2003). This approach not only adheres to basic contract analysis, but avoids “making assumptions and adopting fictions that are largely conjectural, if not patently illogical.... ” Rausch, 882 A.2d at 814. As its name suggests, the determination is made on a case-by-case basis and “subrogation may be denied ... if the lease expressly requires the landlord to maintain fire insurance or the lease exonerates a tenant from losses caused by a fire.” Am. Family Mut. Ins. Co., 757 N.W.2d at 594.

Although each approach is supported by persuasive policy rationales, this court concludes that the parties are in the best position to allocate the risk of loss for fire damage and, therefore, adopt the case-by-case approach. Applying this approach to the commercial lease in this case, we agree with Lloyds that the general provisions requiring Cape Publications to obtain general liability insurance and indemnify and hold the Brandons harmless for its negligence are relevant to determining which party bears the risk of loss. These provisions, however, are not disposi-tive.

The lease expressly provides that the Brandons would purchase a property and casualty insurance policy, which undisput-edly covered fire damage on the commercial building. The parties further agreed that Cape Publications’ rent included its pro rata share of the premium. These specific provisions not only control over the general provisions Lloyds cites, but plainly indicate that the parties intended the risk of loss be born by the Brandons’ insurer: Lloyds. See Colonial Bank, N.A. v. Taylor Morrison Servs., Inc., 10 So.Bd 653, 655 (Fla. 5th DCA 2009) (when two contract provisions address the same subject, the specific controls over the general). This same conclusion was reached in Ken-nerson, 661 So.2d at 330, when the court held an insurer could not maintain a subro-gation action against a commercial tenant where the landlord “assumed responsibility for procuring fire insurance, the cost of which the tenant has agreed to bear and has in fact borne.” See also Rausch, 882 A.2d at 816 (when the landlord expressly or impliedly agrees to maintain fire insurance on the property, “absent some compelling provision to the contrary,” a court can conclude the parties reasonably expected the landlord would only look to the policy, not the tenant, for a fire loss covered by the policy, notwithstanding a general provision requiring the tenant to surrender the premises in good condition or one imposing liability for the tenant’s negligence).

Based on the foregoing, we conclude that the parties intended Cape Publications to be an intended beneficiary or co-insured under the Brandons’ property and casualty insurance policy. Accordingly, Lloyds may not maintain its subrogation action against Cape Publications and the trial court properly entered summary final judgment in its favor.

AFFIRMED.

ORFINGER, J., and LAMBERT, B., Associate Judge, concur.

      . The fire was apparently the result of improper electrical cords used for vending machines that were owned and operated by a third party, but installed at Cape Publications’ direction.

      . Sutton v. Jondahl, 532 P.2d 478 (Okla.Ct.App.1975).

      . See Tri-Par Invs., L.L.C. v. Sousa, 268 Neb. 119, 680 N.W.2d 190, 195 (2004); Dattel Family Ltd. P'ship, 250 S.W.3d 883, 888 (Tenn.Ct.App.2007); Tate v. Trialco Scrap, Inc., 745 F.Supp. 458, 467 (M.D.Tenn.1989).

        .See Cambridge Mut. Fire Ins. Co. v. Crete, 150 N.H. 673, 846 A.2d 521 (2004); Peterson v. Silva, 428 Mass. 751, 704 N.E.2d 1163 (1999); Safeco Ins. Co. v. Capri, 101 Nev. 429, 705 P.2d 659 (1985); Lexington Ins. Co. v. Raboin, 712 A.2d 1011 (Del.Super.Ct.1998).

      . Given the commercial nature of the lease in this case, we presume that the parties had equal bargaining power.

      . The courts in Continental Insurance Co. v. Kennerson, 661 So.2d 325 (Fla. 1st DCA 1995), and State Fann Florida Insurance Co. v. Loo, 27 So.3d 747 (Fla. 3d DCA 2010), have previously addressed this issue. However, at least between these parties, there appears to be some confusion surrounding which approach they adopted. Our analysis of these cases leads us to conclude that Kennerson adopted the case-by-case approach, notwithstanding its citation to Sutton v. Jondahl, 532 P.2d 478 (Okla.Ct.App.1975). It appears, however, that Loo adopted the anti-Sniion approach, notwithstanding its statement that it adopted and applied the case-by-case approach. We need not address, nor resolve, whether such a conflict exists.

      . We note that the same conclusion would result under the anti-Sutton approach because the parties' agreement to shift the risk of loss to an insurer may be implied "when the terms of the lease require the landlord to carry insurance at the expense of the tenant. Page v. Scott, 263 Ark. 684, 567 S.W.2d 101, 103 (1978).


author: SAWAYA, J.

text:
    Michael NEARY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1144.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

The issue we must resolve is whether Michael Neary, who is a resident of Georgia, may be adjudicated guilty as a habitual traffic offender pursuant to section 322.34(5), Florida Statutes, for driving with a revoked license based on Neary’s classification in Georgia as a habitual traffic violator. Because the driving records that were utilized to classify Neary as a habitual traffic offender were not maintained by the Florida Department of Highway Safety and Motor Vehicles (the Department) as required by section 322.264, Florida Statutes (2008), we reverse Neary’s conviction and sentence for driving with a revoked license — habitual traffic offender.

The trooper who stopped Neary for speeding discovered that Neary’s Georgia driver’s license had been revoked after Neary was classified in that state as a habitual traffic violator. The trooper arrested Neary and charged him with “driving while license revoked — habitual offender,” a third-degree felony. At the nonjury trial, Neary asserted that because his license had been revoked by Georgia, not Florida, and Florida did not maintain his traffic record, he did not meet Florida’s statutory definition of “habitual traffic offender.” The trial court disagreed, found him guilty of driving with a revoked license — habitual traffic offender, and sentenced him to 24 months’ probation. Neary appeals.

Neary was convicted of violating section 322.34(5), which states:

Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

In order to be convicted under this statute, the defendant’s driver’s license must have been revoked pursuant to section 322.264 of the Florida Statutes, which provides in pertinent part:

A “habitual traffic offender” is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period....

(Emphasis added).

It is uncontradicted that because the Department did not maintain Neary’s Georgia traffic records, no records maintained by the Department were utilized to establish that Neary was a habitual traffic offender, and the State does not contend otherwise. Therefore, Neary asserts, and properly so, that he does not qualify as a “habitual traffic offender” under section 322.264 and cannot be convicted under section 322.34(5). See Patterson v. State, 938 So.2d 625, 630 (Fla. 2d DCA 2006) (“A conviction under section 322.34(5) simply requires competent evidence showing that the DHSMV maintained a record on the motorist, that the record reflected three prior moving violation convictions, and that the motorist received notice of his designation as a habitual traffic offender and the resulting suspension of his license.”); Rodgers v. State, 804 So.2d 480, 483 (Fla. 4th DCA 2001) (“To sum up the requirements for a conviction under section 322.34, the statute as written by the Legislature merely makes it necessary for the state to prove by competent evidence that DMV maintains a record on the motorist, that its record shows the requisite three separate DWLS convictions within a 5 year period, and that DMV gave the motorist the statutory notice.”)

We conclude that if the records maintained by the Department pursuant to section 322.264 show that a person is a habitual traffic offender, the habitual offender status may be used to elevate the offense of driving with a revoked license to a felony under section 322.34(5). However, Florida may not rely upon a Georgia habitual traffic violator designation to enhance the Georgia resident’s Florida traffic offense to a criminal offense where the Department does not maintain the Georgia traffic records.

Accordingly, we reverse Neary’s conviction and sentence.

REVERSED.

PALMER and ORFINGER, JJ., concur.

      . The 2008 version of the pertinent statutes, in effect when Neary was stopped, is identical to the current version in all material aspects.


author: ORFINGER, J.

text:
    Shannon Lee SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-430.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.

      Shannon L. Shaw, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Shannon Shaw appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The motion raised two grounds for relief premised on allegations of ineffective assistance of counsel. We affirm the denial of Shaw’s first claim, alleging that his trial counsel was ineffective to address the State’s discovery violation, without discussion. We find that Shaw’s second claim is not conclusively refuted by the record and must be resolved after an evidentiary hearing.

In 1981, Shaw was placed on six years probation after pleading no contest to the offense of burglary of a dwelling. In June 1986, a warrant for violation of probation (“VOP”) was filed based upon Shaw’s arrest and conviction for crimes committed in Ohio. In 2008, after being released from prison in Ohio and returning to Florida to face the VOP charges, Shaw admitted that he violated his probation, and was sentenced to fifteen years in the Department of Corrections (“DOC”). Shaw appealed and this Court affirmed the judgment and sentence. Shaw v. State, 993 So.2d 539 (Fla. 5th DCA 2008).

Shaw then filed the instant rule 3.850 motion. Shaw’s second claim asserted that his trial counsel was ineffective for failing to elect a guidelines sentence and object to the trial court’s departure from the guidelines. The trial court denied the claim without a hearing. Under rule 3.850, a defendant is entitled to an evidentiary hearing unless the record conclusively refutes the defendant’s claims. Harich v. State, 484 So.2d 1239, 1240 (Fla.1986).

Because Shaw was placed on probation before October 1, 1983, he was entitled to be sentenced under the guidelines upon revocation of his probation after October 1, 1983, provided that he affirmatively elected a guidelines sentence. See Ames v. State, 470 So.2d 94, 95 (Fla. 5th DCA 1985) (explaining that when defendant is placed on probation prior to October 1, 1983, effective date of sentencing guidelines, and his probation is revoked after that date, defendant must affirmatively elect to be sentenced under guidelines for them to apply). It is unclear from the limited record whether Shaw’s counsel made that election. At the VOP hearing, the following transpired:

THE COURT: The maximum possible penalty is — State?
[THE STATE]: Beats me. This is so old.... But I have not prepared a score sheet because I’m not aware that one exists.
[DEFENSE COUNSEL]: This case predated score sheets.
[THE STATE]: Yes. That is our view.
[DEFENSE COUNSEL]: So that’s why there’s no score sheet there....
THE COURT: So the maximum is 15 years.
[DEFENSE COUNSEL]: Right. But — and I — from the — I’ve tried to do some research to — to figure out, you know, how that applies and I believe — I mean, I’m not really clear on it, but I believe that if — that Mr. Shaw can elect to be sentenced under one of the guidelines. But I’m hoping we don’t even get to that because my — my goal here today is to ask the Court for some — some jail time or time — not time served, but some jail time, and revoke and then terminating this — this probation ....
So all I’m asking is that if we were to select a — a score sheet of guidelines to be sentenced under, which I believe he has the — the right to do, under the-the 3.988, he would score, for this second— degree felony, 30 points.
And then if — if we — if we’re looking at that — thank you — on the — the original sentence would have — I mean, the original points would have been somewhere between 20 and 46. A bump up from that would put him into the recommended range of 12 to 30 months incarceration, community control, or 12 to 30 months, or any non — or in the permitted range, any non-state prison sanction or community control or one to three-and-a-half years of incarceration. So I’m suggesting that with an election for these guidelines, that the permitted range would be, tops, three-and-a-half years of incarceration for this 1981 case.
[THE STATE]: Judge, can I just say that — as the argument recognizes, it’s simply a — a policy argument, the rules don’t apply ....
THE COURT: Well ...
THE DEFENDANT: I’m 57 years old. I’ve got a chronic heart condition, so I can go with the three-and-a-half.
THE COURT: All right. I do revoke, terminate, adjudicate. I do find, based on your history, that you are a threat to society, that you’re not able to control yourself, and so I sentence you to the maximum, which is 15 years in prison, which is 180 months less credit for time served of 120 days.
Thank you very much.
[DEFENSE COUNSEL]: Judge, I would object to that sentence for the record. The State has not — and I can guess if he can share with me the rap sheet but I would just object for the record to the sentence.

(Emphasis added).

In denying the rule 3.850 motion, the trial court found that Shaw’s counsel had elected a guidelines sentence, but that the court imposed an upward departure. On the limited record before us, we cannot determine if Shaw elected to be sentenced under the 1983 guidelines and, if so, whether the court imposed a valid upward departure sentence. See Ames, 470 So.2d at 95; see also Roberson v. State, 633 So.2d 1134, 1135 (Fla. 2d DCA 1994) (reversing and remanding for resentencing to afford appellant opportunity to elect preferred sentencing procedure since there was no discussion in trial court regarding election under 1983 guidelines); Thomas v. State, 479 So.2d 820, 821 (Fla. 2d DCA 1985) (explaining that mere silence at sentencing is not affirmative election to be sentenced under 1983 guidelines; rather, there must be a clear and unequivocal choice made on record). Nor can we determine if a departure sentence was imposed, whether counsel properly preserved any sentencing error for appellate review. For these reasons, we affirm the denial of Shaw’s first claim but remand the second claim for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO, C.J. and JACOBUS, J., concur.

      . Relevant to Shaw’s VOP sentencing, section 921.001(4)(a), Florida Statutes (1983), provided, in part:
      The guidelines shall be applied to all felonies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital felonies and life felonies, committed before October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions of this act.

      . "[F]ailure of the defense counsel to advise defendant of his right to be sentenced under the guidelines constitutes ineffective counsel per se and it is not necessary for defendant to prove the criteria of Strickland.” State v. Brown, 525 So.2d 454, 454 (Fla. 1st DCA 1988); see also McLeod v. State, 523 So.2d 603 (Fla. 1st DCA 1987) (finding claim that counsel failed to advise defendant that he was entitled to guidelines sentence is facially sufficient claim). Cf. Morris v. State, 493 So.2d 19 (Fla. 5th DCA 1986) (affirming summary denial of rule 3.850 motion where defendant alleged counsel was ineffective for waiving guidelines sentence because his non-guidelines sentence was greater than guidelines sentence because motion did not identify what guidelines sentence would have been or that defendant would have elected guidelines sentence).

      . Florida Rule of Criminal Procedure 3.701 (1983) provided, in part:
      8. Guidelines ranges: The presumptive sentences provided in the guidelines grids are assumed to be appropriate for the composite score of the offender. However, a sentence range is provided in order to permit some discretion without the requirement of a written explanation for departing from the presumptive sentence.
      11. Departures from the guideline sentence: Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Carolyn GRAY, in re Engle Progeny Cases Tobacco Litigation, Appellee.
    No. 1D10-3787.
    District Court of Appeal of Florida, First District.
    June 17, 2011.
    Larry Hill and Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, and Gregory G. Katsas of Jones Day, Washington, DC, for Appellant.
    Steven L. Brannock, Celene H. Hum-phries, and Tyler K. Pitchford of Brannock & Humphries, Tampa, and Matthew D. Schultz and Robert M. Loehr of Levin, Papantonio, Thomas, Mitchell & Echsner, P.A., Pensacola, for Appellee.
   PER CURIAM.

AFFIRMED. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010).

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


text:
    R.L.F., Stepfather of M.A.W. and R.J.W., Children, Petitioners, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 5D11-444.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.

      R.L.F., Deltona, pro se.
    Jeffrey Dana Gillen, West Palm Beach, for Respondent.
   PALMER, J.

R.L.F. filed the instant petition seeking a writ of mandamus, requesting this court to direct the trial court to conduct dependency proceedings pursuant to Chapter 39, Florida Statutes, to treat R.L.F. as a party in said proceedings, and to provide R.L.F. access to confidential information related to this matter. The record reveals that the trial court is conducting dependency proceedings and is treating R.L.F. as a party therein. Therefore, R.L.F.’s petition for writ of mandamus is moot, except as to his request for access to confidential information. As to that claim, we conclude that R.L.F. did not establish a clear legal right to receive such access. Accordingly, we deny R.L.F.’s petition.

For purposes of mandamus, the petitioner must show a clear legal right to the relief requested and “an indisputable legal duty on the part of the respondent” to act. Bernard, v. State, 911 So.2d 1259, 1260 (Fla. 5th DCA 2005).

R.L.F. is the step-father of M.A.W. and R.J.W. Pursuant to previous dependency proceedings involving the children’s mother in Lake County, Florida, the children were sent to live with their biological father in Oklahoma. At the same time, the dependency court in Lake County terminated the Department of Children and Families’ (DCF) supervision of the children and relinquished jurisdiction over the children to the Oklahoma court.

Subsequent thereto, the children came to Florida to visit their mother. At that time, the mother filed a petition in Volusia County seeking full custody of the children. The biological father then initiated a paternity action in Oklahoma. He was granted an emergency temporary custody order which he filed in the Volusia County court. Thereafter, the Volusia County court dismissed the mother’s petition seeking full custody, concluding that the Oklahoma court possessed jurisdiction over the children.

Subsequent thereto, R.L.F. filed a petition for dependency in Volusia County relating to his stepchildren. The trial court heard the dependency petition and ordered the children to remain in the custody of their mother. R.L.F. then filed the instant petition seeking a writ of mandamus based upon an indication from the trial court that, since he was not a party to the dependency proceedings, R.L.F. could not file additional pleadings. However, since that time, the successor dependency judge acknowledged the right of anyone with knowledge to file and prosecute a dependency petition and, accordingly, is permitting R.L.F. to participate in the dependency proceedings as a party.

As for R.L.F.’s request for access to confidential information, R.L.F. alleges that he attempted to obtain access to investigative reports from DCF, but the trial court ruled that he lacked standing to obtain the reports because he is not a parent.

Section 39.0132 of the Florida Statutes governs access to court records:

39.0132 Oaths, records, and confidential information.—
(3) The clerk shall keep all court records required by this chapter separate from other records of the circuit court. All court records required by this chapter shall not be open to inspection by the public. All records shall be inspected only upon order of the court by persons deemed by the court to have a proper interest therein, except that, subject to the provisions of s. 63.162, a child and the parents of the child and their attorneys, guardian ad litem, law enforcement agencies, and the department and its designees shall always have the right to inspect and copy any official record pertaining to the child....

§ 39.0132(3), Fla. Stat. (2010) (emphasis added). Since a step-parent is not listed as one that has an absolute right to inspect court records, the trial court possessed discretion to determine whether to grant R.L.F. access to the records.

Additionally, section 39.202 of the Florida Statutes (2010) states:

39.202 Confidentiality of reports in case of child abuse or neglect.—
(1) In order to protect the rights of the child and the child’s parents or other persons responsible for the child’s welfare, all records held by the department concerning reports of child abandonment, abuse, or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, shall be confidential and exempt from the provisions of s. 119.07(1) and shall not be disclosed except as specifically authorized by this chapter....

§ 39.202(1), Fla. Stat. (2010). The statute further states that access to such records shall be granted only to DCF, its agents or contract providers, criminal justice agencies, state attorneys, parents or legal custodians and their attorneys, any person alleged to have caused the abuse or neglect (limited if not the parent), the court, grand jury, bona fide researcher who enters a privacy and security agreement, division of administrative hearings, guardian ad litem, auditor, employees of a comparable out of state agency, Department of Revenue, some public school employees, children’s advocacy center, physician or psychologist, and persons with whom the department seeks to place the child. As such, R.L.F. does not qualify for receiving access to DCF’s records under the statute.

R.L.F. has not established that the trial court has a clear legal duty to grant him access to the DCF’s confidential records since he is not a party with statutory entitlement to receive such access. Therefore, R.L.F. has not established entitlement to receive mandamus relief.

PETITION DENIED.

GRIFFIN and LAWSON, JJ., concur.


text:
    Isaiah Deangelo DORTCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2121.
    District Court of Appeal of Florida, First District.
    June 20, 2011.

      Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Isaiah Deangelo Dortch, challenges his convictions for fleeing a law enforcement officer, resisting an officer without violence, driving while license suspended, and leaving the scene of an accident. Dortch contends the trial court erred by denying a motion in limine to exclude evidence that the car he was driving before his arrest had been reported stolen nearly three months earlier. We agree with the appellant and reverse.

On October 22, 2009, the State charged Dortch by information with fleeing a law enforcement officer (count I), resisting an officer with violence (count II), driving while license suspended (count III), possession of cannabis (count IV), and two counts of leaving the scene of an accident (counts V and VI). Dortch moved to exclude any mention that the car he had been driving when the alleged events occurred was reported stolen.

The prosecutor informed the court that she intended to call the manager of the rental car agency, the owner of the stolen vehicle, to testify that the car was stolen and to establish the arresting officer’s need to make a felony arrest. Citing inadmissible hearsay and relevance grounds, defense counsel expressed concern that the jury would believe the appellant had been fleeing because he stole the car. Finding evidence that the car was stolen “highly relevant,” the court denied the motion.

As expected, at trial, the manager of a Jacksonville Avis Rent-A-Car testified that a red Chevy Cobalt was stolen from the lot on June 29, 2009. On September 16, 2009, police advised Avis that the car had been recovered. That afternoon, Officer Andres (Jacksonville Sheriffs Office) observed a red Chevrolet Cobalt approaching him on University Boulevard. Officer Andres testified that he made a U-turn to follow the car and ran the vehicle’s license plate number, learning that the vehicle had been stolen.

Officer Andres further testified that he followed the car until it stopped abruptly in the middle of the street. The officer exited his patrol car, drew his service revolver, and told the suspect, Dortch, to turn off the engine. Instead, the appellant sped off and Officer Andres pursued with lights and sirens activated. Officer Andres terminated the chase after only a minute. Almost immediately after the chase ended, Dortch’s vehicle was involved in multiple collisions. Officer Haire and his K-9 assistant tracked the appellant into an open field, where he located the suspect in some tall weeds and bushes. Assisted by another officer, Officer Haire pulled Dortch out of the bushes and tried to handcuff him. The appellant rolled over on his back and began flailing his arms. After Dortch’s apprehension, a subsequent search revealed a plastic bag of marijuana on the floor of the front passenger side.

A jury found the appellant guilty as charged on counts I, III, V, and VI; guilty of the lesser-included offense of resisting an officer without violence on count II; and not guilty on count IV.

“As a general rule, a trial court’s ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion.” McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). “However, a trial court’s discretion over such decisions is limited by the evidence code and the applicable case law, and its interpretation of those authorities is subject to de novo review.” Hendricks v. State, 34 So.3d 819, 822 (Fla. 1st DCA), rev. granted, 49 So.3d 746 (Fla.2010). Appellant argues that testimony revealing that his vehicle had been stolen is hearsay and introduces impermissible collateral crime evidence.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” See § 90.801(l)(c), Fla. Stat. (2009). Officer Andres’ testimony that the car the appellant was driving had been stolen is rank hearsay that does not fall within any of the exceptions to the hearsay rule.

Evidence of other crimes may be admissible on the ground that it is inextricably intertwined with the charged offense and therefore relevant to prove that offense. See Kates v. State, 41 So.3d 1044, 1045 (Fla. 1st DCA 2010). “Other crime” evidence is inextricably intertwined with the crime charged, and thus admissible, if the evidence is necessary “to (1) adequately describe the deed, (2) provide an intelligent account of the crime(s) charged, (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crime(s).” Monestime v. State, 41 So.3d 1110, 1112 (Fla. 3d DCA 2010).

Here, the evidence about the car’s being stolen was not necessary to describe the events that took place after the car was stopped and the appellant fled. The jury was called on to determine whether Dortch had resisted the officer with violence, whether he had driven while his license was suspended and whether he had left the scene of an accident, and whether he had possessed marijuana. It mattered not that the car Dortch was driving had been stolen three months earlier. An instruction to the jury that the officer needed to make a felony arrest would have been sufficient to provide the necessary context for the events leading up to the charged crimes.

We reject the State’s argument that evidence that the car was stolen is relevant for the purpose of establishing the context of the initial pursuit of the vehicle. In light of the charges leveled against the appellant — which do not include grand theft auto — we believe this explanation proves little more than a pretext for the admission of evidence of a collateral crime.

We do not find that the justification for Officer Andres’ pursuit was relevant to a material fact in dispute. See Conley v. State, 620 So.2d 180, 183 (Fla.1993) (holding inadmissible a police dispatch report because the reason why officers arrived at the scene was not a material issue in the case, notwithstanding the State’s argument that the testimony was offered to establish a logical sequence of events); Tosta v. State, 786 So.2d 21, 22-24 (Fla. 4th DCA 2001) (holding inadmissible an officer’s repeated reference to chasing an unconfirmed stolen vehicle, despite the State’s contention that evidence was offered only to prove “why the officer [took] the action”).

Where the appellant establishes error in the admission of inherently prejudicial evidence, the burden shifts to the State to show that the error was harmless beyond a reasonable doubt. See Conley, 620 So.2d at 183 (observing that “the inherently prejudicial effect of admitting into evidence an out-of-court statement relating accusatory information to establish the logical sequence of events outweighs the probative value of such evidence”). As discussed, the State did not charge Dortch ■with grand theft auto, making testimony suggesting the appellant’s involvement in such an offense classic collateral crime evidence. “Because of its prejudicial nature, ‘[e]rroneous admission of evidence of collateral crimes is presumed harmful.’ ” Sinclair v. State, 50 So.3d 1223, 1226 (Fla. 4th DCA 2011) (quoting Smith v. State, 743 So.2d 141, 144 (Fla. 4th DCA 1999)). We cannot say beyond a reasonable doubt that the implication that Dortch stole the vehicle did not contribute to the guilty verdict. See Sinclair, 50 So.3d at 1226 (asserting that “[a]n error is harmless only if there is no reasonable possibility that the error complained of contributed to the verdict”). As such, we REVERSE the appellant’s convictions and REMAND with directions for a new trial.

PADOVANO and CLARK, JJ., concur; WOLF, J., dissents without opinion.


text:
    CITY OF PANAMA CITY, Appellant, v. ANDINA, INC. and Columbus Rogers, Appellees.
    No. 1D11-0297.
    District Court of Appeal of Florida, First District.
    June 20, 2011.
    Rowlett W. Bryant and Halley A. Stark of Bryant & Higby, Chartered, Panama City, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

The City of Panama City seeks review of a nonfmal order granting in part Appel-lees’ motion for partial summary judgment. We dismiss the appeal for lack of jurisdiction.

In response to our order to show cause why this appeal should not be dismissed, the City asserts that the order is reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(B), which authorizes appeals of nonfinal orders that “grant ... injunctions.” The City concedes that the order on its face does not grant injunctive relief, but it argues that the order is reviewable under this rule because, by granting summary judgment in favor of Appel-lees on the counts in the complaint seeking injunctive and mandamus relief, the order necessarily has the effect of granting such relief against the City. We disagree.

Contrary to the City’s argument, the order does not grant injunctive or mandamus relief against the City, nor does the order have the practical effect of an injunction. The order does no more than grant a motion for partial summary judgment on the counts in Appellees’ complaint seeking injunctive and mandamus relief. The order does not enter judgment on those counts, nor does the order direct the City to take, or refrain from taking, any action. See Gleicher v. Claims Verification Inc., 908 So.2d 560 (Fla. 4th DCA 2005) (explaining that an order that “does not yet enjoin anyone” and that does not have the “practical effect” of an injunction is not renewable under rule 9.130(a)(3)(B)); Cardiothoracic and Vascular Surgery, P.A. v. West Fla. Reg’l Med. Ctr., 993 So.2d 1060 (Fla. 1st DCA 2008) (“Because the order on appeal did no more than grant summary judgment, the order is not final.”). Accordingly, the order is not reviewable under rule 9.130(b)(3)(B) and we therefore lack jurisdiction to consider this appeal.

DISMISSED.

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    THAN WIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2697.
    District Court of Appeal of Florida, First District.
    June 20, 2011.

      Matt Shirk, Public Defender, Fourth Judicial Circuit, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Than Win is hereby afforded a belated appeal from judgment and sentence in Duval County case number 2010-CF-7242-A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    William BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3426.
    District Court of Appeal of Florida, First District.
    June 21, 2011.
    William Bryant, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant claims that the trial court erred in denying his pro se “Motion for Reconsideration,” which the court construed as a motion to withdraw plea after sentencing, upon finding that the motion was untimely under Florida Rule of Criminal Procedure 3.170(i). The state correctly concedes that appellant’s motion was timely pursuant to Florida Rule of Criminal Procedure 3.040, which provides that when the last day of a time period falls on a Saturday, Sunday, or legal holiday, the time period is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Accordingly, we reverse the denial of appellant’s motion and remand with directions that the trial court address the merits of the motion in accordance with Sheppard v. State, 17 So.3d 275 (Fla.2009).

REVERSED and REMANDED with directions.

WETHERELL, ROWE, and MARSTILLER, JJ., concur.


text:
    Bruce D. BELL, Appellant, v. JM FAMILY ENTERPRISES and Glen McClary, Appellees.
    No. 1D11-0255.
    District Court of Appeal of Florida, First District.
    June 21, 2011.

      Bruce D. Bell, pro se, Appellant.
    Glen A. McClary and Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for Appellees.
   PER CURIAM.

Upon review of Appellant’s timely response to the show cause order, we DISMISS this appeal for lack of jurisdiction.

DISMISSED.

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    Daemon REIYDELL and Billie Hensky Reiydell, Appellants, v. TRUSTMARK NATIONAL BANK, Appellee.
    No. 1D11-0542.
    District Court of Appeal of Florida, First District.
    June 21, 2011.
    Ryan M. Barnett of Whibbs & Stone, P.A., Pensacola, for Appellants.
    Jeffrey L. Burns of Anchors Smith Grimsley, PLC, Fort Walton Beach, for Appellee.
   PER CURIAM.

Upon consideration of the Appellants’ response to the Court’s order of March 28, 2011, the Court has determined that the appeal is premature. See Conti v. B & E Holdings, LLC, et al., 61 So.3d 1272 (Fla. 1st DCA 2011). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. All pending motions are denied as moot.

DAVIS, ROBERTS, and ROWE, JJ., concur.


author: NORTHCUTT, Judge.

text:
    In the Interest of A.M.M., a child. D.M.M., Appellant, v. J.M.M., Appellee.
    No. 2D10-2646.
    District Court of Appeal of Florida, Second District.
    June 22, 2011.

      D.M.M., pro se.
    Anthony B. Márchese, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

D.M.M. challenges the circuit court’s order granting temporary custody of her child, A.M.M., to the child’s paternal grandmother, J.M.M. The order was entered in proceedings initiated by J.M.M. under chapter 751, Florida Statutes (2009), which addresses temporary custody of minor children by extended family members. The custody order and the proceedings giving rise to it violated the requirements of that chapter, and the order must be reversed.

In January 2010, the grandmother filed a sworn petition for temporary custody of A.M.M., alleging that the child’s father had signed a document entitled “Consent to Have Legal Custody of Minor Child and Authorization for Medical Treatment.” See § 751.03(8). The petition stated that the child’s mother had not consented to the grandmother’s temporary custody of the child. It asserted that she was an absentee parent and that “her whereabouts and location are presently unknown.” Filed with the petition was the grandmother’s Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA) affidavit reflecting that the child’s residence for the previous five years had been at the grandmother’s address on Fourth Avenue in Tampa. See § 751.03(4). The UCCJEA affidavit recounted that between May 1999 and October 2009, the child had resided with her mother, father, and grandmother at the Fourth Avenue address but that, in the weeks between October 2009 and the date of the affidavit in December 2009, the child had resided only with her father and grandmother. Notably, although the grandmother’s verified petition alleged that she did not know where the mother was located, the return of service reflected that the mother was personally served with process at the grandmother’s Fourth Avenue address eight days after the petition was filed.

The mother did not respond to the petition, and the clerk of court entered a default in February 2010. She did, however, appear without counsel at a final hearing the next month, at which time she voiced her objection to the grandmother’s attempt to gain temporary custody of the child. The circuit court gave the mother an additional thirty days in which to file pleadings, either through counsel or pro se. On March 11, 2010, at a case management conference attended only by the grandmother and her counsel, the court reviewed the case file, noted the absence of filings on the mother’s behalf, and entered an order granting the grandmother’s petition for temporary custody.

In her filings in this court, the grandmother maintains that our inquiry must end there, owing to the default that was entered after the mother failed to file a response to the petition. Indeed, the court’s order suggests that it gave custody of the child to the grandmother simply because “no appearance has been made by legal counsel and [] no pleadings have been filed on behalf of, or by [the mother].” But the law of Florida is clear: child custody cannot be decided on the basis of a default. See Barnett v. Barnett, 718 So.2d 302, 304 (Fla. 2d DCA 1998). Certainly, a mother’s fundamental liberty interest in the care, custody, and management of her child, see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), cannot be taken from her on the basis of her failure to file pleadings or to hire a lawyer. Cf. Richardson v. Richardson, 766 So.2d 1036, 1043 (Fla.2000) (invalidating a statute that permitted a grandparent to seek custody based on a “best interest of the child” standard). The mother’s default notwithstanding, it remained the grandmother’s burden to plead and prove that she should be awarded temporary custody under chapter 751.

As mentioned, the petition acknowledged that the mother did not consent to placing temporary custody of her child with the grandmother. Section 751.03(8) requires that a petition for temporary custody allege “[t]he consent of the child’s parents, or the specific acts or omissions of the parents 'which demonstrate that the parents have abused, abandoned, or neglected the child as defined in chapter 39.” The grandmother’s petition made no allegations that the mother abused or neglected the child, as those terms are defined in section 39.01(2) and (44), Florida Statutes (2009). Some of the petition’s assertions might be read to mean that the mother abandoned the child. See § 39.01(1). But the grandmother’s UCCJEA affidavit— which reflected that the mother had lived with her child until just a few weeks before the affidavit was signed — appeared to undermine those allegations. See Landinguin v. Carneal, 837 So.2d 525 (Fla. 4th DCA 2003) (noting that a sworn petition alleging, among other things, that a grandmother was solely responsible for child’s financial and emotional care and that the mother had spent little time with the child, contained insufficient facts to justify temporary custody over the parents’ objection).

Beyond that, and as noted in the circuit court’s order, the mother appeared at the March 2010 hearing and objected to the temporary custody petition. Section 751.05 provides, in pertinent part:

(1) At the hearing on the petition for temporary custody, the court must hear the evidence concerning a minor child’s need for care by the petitioner, all other matters required to be set forth in the petition, and the objections or other testimony of the child’s parents, if present.
(2) Unless the minor child’s parents object, the court shall award the temporary custody of the child to the petitioner when it is in the best interest of the child to do so.
(3) If one of the minor child’s parents objects to the granting of temporary custody to the petitioner, the court shall grant the petition only upon a finding, by clear and convincing evidence, that the child’s parent or parents are unfit to provide the care and control of the child. In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in chapter 39.

(Emphases supplied.)

Our record is sketchy; we have no transcript of the March 2010 hearing, and therefore we are unable to discern whether any evidence was presented on that occasion. But the fact that, at the hearing, the court gave the mother additional time to obtain counsel and file appropriate pleadings, the court’s reliance on the default when granting the petition, and the absence of any reference to evidence either in the court’s order or in the grandmother’s filings in this court, strongly suggest that the court heard no evidence in support of the petition notwithstanding the statutory requirement that it “must” do so. See T.M.M. v. H.M.C., 788 So.2d 1114 (Fla. 2d DCA 2001) (reciting that the statute requires that a relative seeking child custody over a parent’s objection must prove by clear and convincing evidence that the parent is unfit).

Just as important, the circuit court’s order wholly failed to address the mother’s fitness to parent the child. Specifically, the court did not find, by clear and convincing evidence or otherwise, that the mother had abused, abandoned, or neglected her child, as defined in chapter 39. As such, the order granting temporary custody of the child to the grandmother was facially erroneous. See § 751.05(3); K.N.B. v. M.C., 779 So.2d 508, 512 n. 5 (Fla. 2d DCA 2000) (commenting that chapter 751 requires that the court find the parent is unfit); Glockson v. Manna, 711 So.2d 1332, 1332-33 (Fla. 2d DCA 1998) (reversing order granting temporary custody to the child’s aunt when neither the circuit court’s order, which contained no factual findings of any kind, nor the sparse record, disclosed any basis on which a finding that the mother was unfit could be predicated); see also D.B. v. W.J.P., 962 So.2d 949, 952 (Fla. 5th DCA 2007) (concluding that the court erred in granting temporary custody to a grandmother when, among other things, “the court failed to make findings required by section 751.05”).

Finally, the mother has alleged to us that she has been denied access to her child since the circuit court entered the temporary custody order. The court’s order did not address the mother’s entitlement to visitation with her child even though section 751.05(4) provides that “[t]he order granting temporary custody of the minor child to the petitioner may also grant visitation rights to the child’s parent or parents, if it is in the best interest of the child to do so.” Of course, this statutory subsection operates only in the case where a temporary custody petitioner has overcome the absence of a parent’s consent by pleading and proving by clear and convincing evidence that the parent abused, neglected, or abandoned the child; otherwise, the petition properly would be denied, and the question of visitation would be moot.

The mother’s assertion is outside our record, and we have no way to verify it. But we trust that on remand the circuit court will recognize the urgency of reuniting the mother with her child until such time as it might conclude — based on proper pleading, proof, and statutory findings — that placing temporary custody of the child with the grandmother is warranted under the law. In that event, the court shall award the mother such visitation as is consistent with the child’s best interests.

Reversed and remanded for further proceedings.

DAVIS and WALLACE, JJ., Concur.

      . The mother's brief advises that the child’s father, the mother’s husband, died in May 2010, after the temporary custody order was entered.

      . The circuit court’s orders "in this case also indicated that the orders were served to the mother at the same Fourth Avenue address.