text:
    Marvin L. HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3733.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Rehearing Denied July 22, 2011.

      Marvin L. Hogan, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Marvin L. Hogan alleges, among other claims, that his fifteen-year sentence exceeds the statutory maximum term. Hogan was convicted of a third-degree felony. If sentenced as a habitual offender and prison release reoffender, which may be the case, he could have received a ten-year term. See §§ 775.082, 775.084(4)(a), Fla. Stat. (2005). The state argued below that Hogan’s sentence was corrected to reflect a ten-year term. None of the documents or transcripts furnished conclusively refute the claim. Consequently, we reverse and remand for the trial court to revisit this claim and to attach additional portions of the record, if available, to refute the claim. The trial court’s order denying relief is affirmed in all other respects.

Reversed and remanded.

CIKLIN, GERBER and LEVINE, JJ., concur.


source: Caselaw Access Project

author: DAMOORGIAN, J.

license: Public Domain

text:
    CHRYSLER GROUP, LLC, Appellant, v. Maria MUSACCHIA and Anthony Musacchia, Appellees.
    No. 4D10-212.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    John J. Glenn and Wilnar J. Paul of AndersonGlenn, LLC, Boca, for appellant.
    Patrick St. George Cousins of Cousins Law Firm, P.A., West Palm Beach, for appellees.
   DAMOORGIAN, J.

Chrysler Group, LLC (“Chrysler”) appeals the final judgment granting the Musacchias’ claim for attorney’s fees under section 681.112(1), Florida Statutes (2006). We reverse based upon our recent decision in General Motors v. Bowie, 58 So.3d 934 (Fla. 4th DCA 2011).

By way of background, the Musacchias leased a new Jeep Commander in 2006. After experiencing numerous problems with the vehicle, they filed a request for arbitration with the Lemon Law New Motor Vehicle Arbitration Board, contending the vehicle was a “lemon” and requesting a refund. See § 681.104(2)(a), Fla. Stat. (2006). The arbitration board determined that the vehicle was a “lemon” and ordered Chrysler to refund the Musacchias for the purchase price of the vehicle minus a reasonable offset for use. No appeal was taken from the arbitration board’s order.

After Chrysler’s compliance with the arbitration order, the Musacchias filed a lawsuit under section 681.112(1) seeking to recover the attorney’s fees they incurred in the arbitration. The trial court entered a judgment awarding those fees. This appeal follows.

As in Bowie, the issue before us is whether the attorney’s fees incurred during the Lemon Law proceeding before the arbitration board constitute “damages” recoverable pursuant to section 681.112(1). We have recently held that “ ‘damages’ under section 681.112 do not include attorney’s fees incurred in pursuing the refund option through arbitration.” General Motors, 58 So.3d at 935.

In this case, the Musacchias filed a suit solely for the purpose of recovering attorney’s fees incurred in the arbitration. Accordingly, the judgment awarding attorney’s fees is reversed with directions to enter judgment for the appellant.

Reversed.

GROSS, C.J., and POLEN J., concur.

      . Chrysler Group was substituted in as a party in lieu of Chrysler LLC pursuant to the Stipulation for Substitution of Parties that was entered as an order by the circuit court.


author: PER CURIAM.

text:
    Willie HODGES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3134.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2011.
    Willie Hodges, Belle Glade, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Megan Saillant, Assistant Attorney General, Daytona Beach, for Respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Petitioner’s motion for rehearing, withdraw our prior order denying the petition alleging ineffective assistance of counsel and substitute the following opinion in its stead.

Petitioner, Willie Hodges [“Hodges”], convicted of attempted second degree murder, has filed a petition alleging ineffective assistance of appellate counsel because appellate counsel failed to raise the issue of whether the attempted manslaughter jury instruction given in his trial was fundamental error. He relies on State v. Montgomery, 39 So.3d 252 (Fla.2010) and related cases, such as Minnich v. State, — So.3d-, 2011 WL 265765 (Fla. 1st DCA 2011); Bailey v. State, — So.3d -, 2011 WL 265769 (Fla. 1st DCA 2011).

Hodges was charged by amended information with attempted first degree murder on a law enforcement officer with a firearm, possession of a firearm by a convicted felon, and aggravated assault with a firearm. The State later dismissed the charge of possession of a firearm by a convicted felon. The jury found Hodges guilty of the lesser included offense of attempted second degree murder of a law enforcement officer with a firearm and aggravated assault with a firearm. On November 25, 2008, Hodges filed an appeal. This Court issued a per curiam affirmance, and the mandate issued on June 9, 2010.

In September 2010, Hodges filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel. He alleges that his appellate counsel was ineffective in failing to argue that the trial court committed fundamental error when it included in the attempted manslaughter jury instruction the element of intent to kill. The jury instruction for attempted manslaughter included the language: “Hodges committed an act which was intended to cause death.”

We initially denied the petition, citing to Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), a decision of the Fourth District Court of Appeal. During the pen-dency of Hodges’ motion for rehearing, however, we have reconsidered Williams and have concluded that our rebanee on it was wrong. See Burton v. State, — So.3d - (Fla. 5th DCA 2011). Given the Florida Supreme Court’s April 2010 Montgomery decision, we are bound to conclude that appellate counsel should have raised the issue at the appellate level before our decision in the appeal was final. See Minnich, — So.3d-: Bailey, — So.3d-; Sharpe v. State, 39 So.3d 342 (Fla. 1st DCA 2010); Asberry v. State, 32 So.3d 718 (Fla. 1st DCA 2010); Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009). We accordingly grant the writ, vacate the judgment and remand for a new trial.

Petition GRANTED; Judgment VACATED; and REMANDED.

GRIFFIN, TORPY and COHEN, JJ., concur.


author: DAVIS, Judge.

text:
    Marion S. LEWIS, Appellant, v. CITY OF TAMPA, Appellee.
    No. 2D10-1060.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.

      Steven G. Wenzel of Wenzel, Fenton, Cabassa, P.A., Tampa, for Appellant.
    Chip Fletcher, City Attorney, and Jerry M. Gewirtz, Chief Assistant City Attorney, Tampa, and Thomas M. Gonzalez of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Appellee.
   DAVIS, Judge.

Marion S. Lewis appeals the final summary judgment entered in favor of the City of Tampa by which the trial court concluded that by his qualifying as a candidate to run for mayor of Tampa, he automatically had resigned his position as a captain in the City of Tampa Police Department. We reverse.

In January 2007, Lewis qualified to run for the position of mayor of Tampa. He did not resign from his position with the Tampa Police Department to run for may- or, arguing that such a resignation was not required by section 99.012(5), Florida Statutes (2006). In response to his refusal to resign, the City of Tampa filed a complaint, seeking a declaratory judgment that would determine (1) that the statute did apply to Lewis and (2) that by his filing his Oath of Candidate form, he had by operation of law submitted his resignation from the police department. In his answer to the complaint, Lewis denied that the law required him to resign, alleged that he did not resign, and suggested that if he failed to be elected, he intended to return to his employment with the Tampa Police Department.

Both parties filed motions for summary judgment. The trial court denied the City’s motion but granted Lewis’s, finding that he was not required to resign in order to qualify as a candidate for mayor. The City appealed that final judgment, and this court reversed, finding that section 99.012 did require Lewis to resign from the Tampa Police Department in order to run for mayor. City of Tampa v. Lewis, 993 So.2d 1096, 1099 (Fla. 2d DCA 2008). In that opinion, this court acknowledged that it was not addressing the issue of whether the filing of the Oath of Candidate form was tantamount to submitting a resignation. Id. at 1098 n. 4.

On remand, the trial court entered a partial summary judgment in favor of the City, finding that Lewis was required to resign. After allowing Lewis to file an amended answer and counterpetition alleging improper discharge from his employment, the trial court denied Lewis’s motion for summary judgment on that counterpet-ition and entered final summary judgment in the City’s favor. Citing Baker v. Aiderman, 766 F.Supp. 1112 (M.D.Fla.1991), the trial court concluded that Lewis effected his resignation by filing his Oath of Candidate form. This was error.

In Baker, the United States District Court for the Middle District of Florida addressed the issue of whether Baker resigned his position as a property evaluator with the Hillsborough County Property Appraiser by swearing an Oath of Candidate form in conjunction with running for the office of Hillsborough County Property Appraiser in 1984. Id. at 1114. The district court concluded as follows:

The resign-to-run requirement in section 99.012(7) of the Florida Statutes is enforced by section 99.021[,] which provides that “[ejach candidate ... for nomination or election to any office other than a judicial office as defined in chapter 105, shall take and subscribe to an oath or affirmation in writing.” Plaintiff swore, under the Oath of Candidate, “that he has resigned from any office from which he is required to resign pursuant to Section 99.012, Florida Statutes.” Hence, when Plaintiff signed the Oath of Candidate, he made a sworn affirmation of resignation. This Court finds that Plaintiff resigned hy operation of law, pursuant to section 99.012(7) of the Florida Statutes.

766 F.Supp. at 1115 (alteration in original) (emphasis added).

However, subsequent to the version of the statute interpreted by Baker, 766 F.Supp. 1112, the Florida Legislature amended section 99.012 in 1991 by adding subsection (6), which reads, “The name of any person who does not comply with this section may be removed from every ballot on which it appears when ordered by a circuit court upon the petition of an elector or the Department of State.” § 99.012(6), Fla. Stat. (1992). This amendment indicates that the legislature intended to enforce the resign-to-run law by removing a candidate’s name from the ballot rather than automatically dismissing him or her from his or her employment.

To conclude that the “operation of law” principle set forth in Baker controls here would render the 1991 amendment to section 99.012 meaningless. The statutory opportunity to seek the removal of a name from the ballot would be useless if every qualifying candidate was deemed to have automatically resigned. “This court will not interpret statutes so as to render portions of them meaningless when a reading that gives meaning to all portions is possible.” Stratton v. Sarasota County, 983 So.2d 51, 55 (Fla. 2d DCA 2008). We therefore conclude that the 1991 amendment nullifies Baker’s conclusion that the swearing of the Oath of Candidate acts as a resignation' by “operation of law.”

The City argues that the meaning of the 1991 amendment is that if a candidate fails to meet the other statutory requirements to qualify for office, as described in the Oath of Candidate, an elector may seek the removal of the candidate from the ballot. The City maintains that this interpretation would recognize Baker while still affording meaning to the 1991 amendment. We reject this argument. The language of the 1991 amendment specifically refers to the “person who does not comply with this section.” § 99.012(6) (emphasis added). “[T]his section” only involves the requirement of resigning to run. It does not implicate the other requirements suggested by the City, such as voter registration or residence within the district.

Alternatively, the City argues that the impact of the amendment was nullified by a 2007 amendment to section 99.012 which provided that such a resignation must be effective on the date of qualifying rather than on the date the new term of office would begin. See § 99.012(4), Fla. Stat. (2008). We also reject this argument. The starting date on which one must resign does not indicate whether the act of qualifying is an automatic resignation and would not negate the application of then section 99.012(6) to Lewis.

Based on our reading of section 99.012, we conclude that the trial court erred in entering the final judgment that determined Lewis automatically resigned from his employment by filing his Oath of Candidate form. We therefore reverse the final judgment and remand with instructions that the trial court enter a final judgment on the City’s complaint consistent with this opinion and consider the remaining allegations of Lewis’s counter-petition.

Reversed and remanded for further proceedings.

ALTENBERND and MORRIS, JJ., Concur.

      . The Oath of Candidate form that is required by law includes a statement that the individual "has resigned from any office from which he or she is required to resign pursuant to s. 99.012, Florida Statutes.” § 99.021(1)(a).

      . By finding that Lewis was not required to resign, the trial court did not further consider whether the filing of the Oath of Candidate form was, by operation of law, the submission of his resignation.

      . Section 99.012(6) since has been renumbered as section 99.012(5). See § 99.012(5), Fla. Stat. (2009).


author: NORTHCUTT, Judge.

text:
    Dana Lynn GUARSCIO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5000.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.

      James Marion Moorman, Public Defender, and Lynda B. Barack, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

A jury convicted Dana Guarscio of exploitation of an elderly person, grand theft from a person over age sixty-five, and four counts of uttering a forged instrument. However, the evidence failed to prove a necessary element of the exploitation offense, and we reverse that conviction. The evidence also was insufficient to prove a second-degree grand theft. We reverse that conviction with directions to reduce it to a third-degree felony. We affirm without further comment Guarscio’s convictions for four counts of uttering forged instruments.

The victim in this case was Guarscio’s grandmother, Helen Woichowski, who lived with Guarscio and Guarscio’s son. The evidence showed that Woichowski essentially raised her granddaughter in Connecticut and continuously helped to support Guarscio thereafter. In 1995, Guarscio and her son moved to Florida. Woichowski joined them in 1999. At that time, Woichowski was in her early eighties and had recently survived both a heart attack and a bout with cancer. Woichow-ski bought a house in Sarasota, and the family lived there together. The house was titled in a land trust with Woichowski and Guarscio named as cotrustees. Woi-chowski received income from social security and a small pension. Guarscio worked sporadically in low-wage positions.

When Woichowski purchased the home, the mortgage debt was about $47,000. However, over an eighteen-month period beginning in 2003, the mortgage was refinanced three times, increasing the mortgage indebtedness by approximately $100,000. Proceeds from the first refinancing were used to pay for Guarscio’s wedding and to set her and her new husband up in a painting business. But the marriage and the business failed within a year. Some portion of the next refinancing was used to pay for Guarscio’s divorce. Although Woichowski’s fixed income and Guarscio’s meager earnings had been sufficient to make ends meet initially, the family struggled with a mortgage payment that basically doubled after the refinancings. Still, the grandmother continued to support Guarscio and her son, buying Guar-scio a car and paying for gifts and trips.

Events took a critical turn in November 2005, when Woichowski suffered a stroke. She was in intensive care for several days, during which Guarscio was responsible for medical decisions as her grandmother’s health care surrogate. Guarscio also held her grandmother’s durable power of attorney, but it could be activated only by two doctors’ opinions that Woichowski was incapacitated; no such opinions were ever rendered. Woichowski recovered enough to return home briefly, but concerns for her safety when left alone necessitated her admission into a nursing facility. Guarscio was working part-time at a gas station in the mornings and a few evenings a week at another job. Woichowski was admitted to a nursing facility seemingly with the expectation that she would remain there for only a few weeks.

At the nursing home, a social worker became concerned about Woichowski’s welfare. Her dealings with Guarscio gave her little reassurance, so she made a referral to a local guardianship program. The guardian met with Woichowski in early March 2006 and found her to be confused and upset. The guardian looked into Woi-chowski’s financial situation and discovered that it was a mess. By this time, the house was on the verge of foreclosure, and Woichowski’s limited income was needed for her care. A voluntary guardianship was arranged. By mid-March, Guarscio was notified by mail and by the guardian personally that the power of attorney had been revoked and that she should not be writing checks on Woichowski’s bank account. In the meantime, Guarscio had arranged to sell the house in order to avoid the foreclosure. The guardian eventually agreed that the sale was in Woi-chowski’s best interest. The proceeds from the sale, approximately $72,000, were placed in escrow.

Based on the guardian’s investigation into Woichowski’s finances, the State brought criminal charges against Guarscio. Count one alleged exploitation of the elderly in the amount of $100,000 or more occurring between April 2008 and May 2006. Count two alleged grand theft of U.S. currency, over $10,000 but less than $50,000, occurring during the same three-year time span; the grand theft charge further alleged that the victim was over the age of sixty-five. The next four counts alleged that Guarscio uttered forged instruments, based on four checks written in late March and April 2006, after the guardian instructed her to cease writing checks on Woi-chowski’s account. As mentioned, Guar-scio was convicted on all counts.

Guarscio argues on appeal for judgments of acquittal. Applying a de novo standard, we review the issue to determine whether the convictions were supported by competent, substantial evidence. See Pagan v. State, 830 So.2d 792, 803-04 (Fla.2002). In the absence of specific arguments for acquittal below, Guarscio contends that the issue should be addressed as a claim of ineffective assistance apparent on the face of the record or as an issue of fundamental error because the State failed to carry its burden of proving essential elements of the crimes. See, e.g., Hicks v. State, 41 So.3d 327 (Fla. 2d DCA 2010) (describing ineffective assistance on the face of the record when defense counsel failed to move for a judgment of acquittal); F.B. v. State, 852 So.2d 226 (Fla.2003) (explaining fundamental error when evidence failed to show crime was committed). We review the convictions in this light.

The fourth amended information charged Guarscio with exploitation of an elderly person in violation of section 825.103(1)(a) and (2)(a), Florida Statutes (2002). Subsection (2)(a) makes the crime a first-degree felony when the amount involved is $100,000 or more. Subsection (1)(a) describes the other elements of the crime. In pertinent part, it states:

(1) “Exploitation of an elderly person or disabled adult” means:
(a) Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:
1.Stands in a position of trust and confidence with the elderly person or disabled adult....

§ 825.103(l)(a) (emphasis supplied). The State was thus required to prove that Guarscio obtained her grandmother’s property “by deception or intimidation.”

For purposes of the statute, “Deception” means:

(a) Misrepresenting or concealing a material fact relating to:
1. Services rendered, disposition of property, or use of property, when such services or property are intended to benefit an elderly person or disabled adult;
2. Terms of a contract or agreement entered into with an elderly person or disabled adult; or
3.An existing or preexisting condition of any property involved in a contract or agreement entered into with an elderly person or disabled adult; or
(b) Using any misrepresentation, false pretense, or false promise in order to induce, encourage, or solicit an elderly person or disabled adult to enter into a contract or agreement.

§ 825.101(3). “Intimidation” is defined as “the communication by word or act to an elderly person or disabled adult that the elderly person or disabled adult will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical services, money, or financial support or will suffer physical violence.” § 825.101(8).

On this charge, the State’s case was based on the multiple refinancings and Guarscio’s use of money obtained from them. The record reflects that the State proved that the house was refinanced and that the money was spent on the family, including Guarscio. But it presented no evidence that Guarscio intimidated or deceived her grandmother into doing either. The State presented a closing statement from the last refinancing, and it was signed by both Woichowski and Guarscio. But nothing more is known about Guar-scio’s involvement in those transactions. When we review the evidence of the three refinancings, we cannot avoid the conclusion that the State’s evidence was only that the transactions occurred. Certainly, there is a reasonable inference from the evidence that the refinancings were not a good idea, but that is a far cry from proof that they were accomplished by Guarscio’s deception or intimidation of her grandmother. See Bernau v. State, 891 So.2d 1229, 1232 (Fla. 2d DCA 2005) (reversing conviction for exploitation of elderly when State failed to prove that son acquired significant assets from elderly parents through deception or intimidation, even though evidence showed that “such a gift ... under the circumstances exhibits extremely poor judgment on the part of the parents”). The State having failed to prove an element of the crime, we must reverse Guarscio’s conviction for exploitation of the elderly.

The fourth amended information also charged Guarscio with grand theft from a person sixty-five years of age or older of an amount between $10,000 and $50,000 in violation of sections 812.014(1) and .0145(2)(b), Florida Statutes (2002). “A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property.” § 812.014(1)(a). When the defendant knows or has reason to know that the victim is sixty-five or older and the amount is between $10,000 and $50,000, the crime is a second-degree felony. § 812.0145(2)(b). When the amount is $800 or more but less than $10,000, the crime is a third-degree felony. § 812.0145(2)(c). Guarscio was convicted of the second-degree felony.

We have closely scrutinized the extensive evidence in this case but have not found sufficient proof of a theft of $10,000 or more. In this regard, it is important to note that the State’s proof included transactions predating Woichowski’s stroke. And, to be sure, prior to the stroke checks were written on Woichowski’s account to Guarscio and funds were transferred from Woichowski’s account to Guarscio’s account. But no evidence suggested that those transactions were anything other than gifts or were not fully consistent with Woichowski’s longstanding, voluntary support of her granddaughter.

Indeed, at Guarscio’s trial there was ample testimony about Woichowski’s finances and about her poor health following her stroke. But only one State witness testified to Woichowski’s health before the stroke. Woichowski’s doctor had treated her almost continuously since 1999. The doctor testified that she “suspected” Woi-chowski had some mild cognitive dysfunction that was age-related. But Woichow-ski was never tested for dementia, and the doctor never made a formal diagnosis. The doctor said that Guarscio was the one who brought Woichowski to every appointment, but the doctor did not testify that she ever told Guarscio of her suspicions about Woichowski’s mental condition. Beyond the doctor’s unproved suspicions, the State tendered no evidence that Woichow-ski suffered a significant cognitive impairment prior to her stroke. Even assuming that she did, the State did not prove that Guarscio knew or should have known about it.

Of course, the period following the stroke was a different matter. In Deranger v. State, 652 So.2d 400, 401 (Fla. 2d DCA 1995), this court affirmed grand theft convictions resulting from an “unusual number of sizable checks” written over a two-year period by a victim showing symptoms of “reduced mental capacity.” We noted that theft is not shown when an owner gives property to another unless there was “evidence that the defendant knew the victim lacked the mental capacity to consent to the taking of his or her property.” Id. at 401.

In this case, the State proved that after Woichowski’s stroke, Guarscio cashed checks totaling just under $5000. Thus, the State proved a third-degree felony under section 812.0145(2)(c). On remand, the court shall reduce Guarscio’s grand theft conviction to third-degree grand theft from an elderly person.

Guarscio’s convictions for uttering forged instruments are affirmed. Her conviction for second-degree grand theft from an elderly person is reversed with directions to instead convict her of third-degree grand theft from an elderly person. Her conviction for exploitation of an elderly person is reversed with directions to acquit and discharge her on that charge.

Affirmed in part, reversed in part, and remanded.

LaROSE and CRENSHAW, JJ, Concur.


author: CRENSHAW, Judge.

text:
    Robert FUESY, Appellant, v. Margaret FUESY, Appellee.
    No. 2D09-3788.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.
    Leslie Telford of Leslie Telford, P.A., Sarasota, for Appellant.
    Angela D. Flaherty of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., Sarasota, for Appel-lee.
   CRENSHAW, Judge.

Robert Fuesy, the Former Husband, appeals the trial court’s final order adopting the magistrate’s recommendation for modification of child support. On appeal he challenges the trial court’s determination of Margaret Fuesy’s, the Former Wife’s, income for child support purposes. Because the trial court failed to consider the Former Wife’s contributions to a voluntary retirement account in determining the Former Wife’s income for child support purposes, we reverse and remand for further proceedings. We affirm on all remaining grounds without comment.

The parties’ final order of dissolution of marriage incorporated a marital settlement agreement which provided that the Former Husband would pay $900 per month in child support to the Former Wife for the parties’ three minor children. The agreement stated that the Former Husband’s child support obligation would terminate at the time each child turned eighteen years old. The remaining child support payments would then be calculated in accordance with the amounts set forth by the child support guidelines.

In September 2008, the Former Husband filed a supplemental petition for adjustment of child support. By that time, two of the three minor children had reached majority. A hearing was held to determine the amount of child support the Former Husband owed after each child turned eighteen years old, beginning in 2005. The trial court’s final order rejected the Former Husband’s proposed child support guidelines and adopted the Former Wife’s proposed guidelines. The Former Husband’s ongoing child support obligation for the remaining minor child was set to $738.60 per month.

The Former Husband challenges on appeal the trial court’s determination of the Former Wife’s income for purposes of calculating child support. Because the trial court failed to consider the Former Wife’s contributions to a voluntary retirement plan, we reverse and remand for recalculation of child support.

Section 61.30(2)(a), Florida Statutes (2008), describes the various income sources to be included in calculating a party’s gross income for purposes of determining child support. Section 61.30(3) lists the allowable deductions in order to calculate net income. Although for purposes of calculating child support, mandatory retirement payments are included as allowable deductions under section 61.30(3)(d), voluntary retirement payments are not. See Nelson v. Nelson, 651 So.2d 1252, 1254 (Fla. 1st DCA 1995) (instructing the trial court to consider the husband’s contributions to a voluntary pension plan “as part of his income for purposes of determining child support”). Here, the Former Wife testified that she was contributing to an IRA, and no evidence was presented to support a finding that she was contributing to a mandatory retirement plan. And because it appears the values she listed in her proposed guidelines failed to include any of her contributions to a voluntary retirement plan, we reverse. We direct the trial court to recalculate the Former Wife’s income and child support for each year that the trial court failed to consider the Former Wife’s contributions to a voluntary retirement plan.

Although section 61.30(2)(a)(7) includes pension, retirement, or annuity payments as gross income, we note that the Former Wife’s withdrawals from any voluntary retirement account shall not be included as income for the purposes of determining child support.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and KELLY, JJ., Concur.


text:
    Bryan CURRY, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-1515.
    District Court of Appeal of Florida, Second District.
    June 15, 2011.

      Bryan Curry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Bryan Curry, in the sole ground in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), contends that his appellate counsel was ineffective in failing to argue that the then standard jury instruction for manslaughter by act that was given to the jury in his second-degree murder trial constituted fundamental error. We agree, and as we did in Del Valle v. State, 52 So.3d 16, 16 (Fla. 2d DCA 2010), we reverse Curry’s murder conviction, vacate the sentence, and remand for a new trial.

After a jury trial Curry was convicted of second-degree murder as charged in the information. The victim was Curry’s girlfriend. She had been strangled, and her body was found floating in a retention pond. The State presented testimony at trial that the night before the body was found, Curry and the victim had been arguing about his drug usage. The State also presented evidence of incriminating statements made by Curry. At the jury charge conference, trial counsel requested that the jury not be instructed on any lesser-included offenses of second-degree murder. However, the prosecutor requested that the trial court instruct on the lesser-included offense of manslaughter, and the trial court agreed.

As this court stated in Del Valle, 52 So.3d at 17:

The offense of second-degree murder is only one step removed from the necessarily lesser-included offense of manslaughter. State v. Montgomery, 39 So.3d 252, 259 (Fla.2010). Manslaughter may be committed in one of three ways: by act, by procurement, or by culpable negligence. Id. at 256; see also 782.07(1), Fla. Stat. (2006).

When the trial court indicated that it would give a manslaughter instruction, Curry’s trial counsel argued that the jury should be instructed on only one of the three ways of committing manslaughter. The prosecutor then selected the manslaughter by act instruction. When asked by the trial court if she was requesting an instruction on manslaughter by culpable negligence, trial counsel stated that she was not.

Montgomery v. State, — So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), was the first case to hold that the then standard instruction improperly imposed an additional element of intent to kill on the offense of manslaughter by act and that it was therefore fundamentally erroneous. In Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007) (en banc), this court held that “a conviction for manslaughter by act does not require an intent to kill, but only an intentional act that causes the death of the victim.” We stated:

We are also aware that the standard jury instruction for manslaughter by act requires a finding that the defendant “intentionally caused the death of’ the victim. Fla. Std. Jury Instr. (Crim.) 7.7. We do not read this instruction to require an intent to kill, however. We read this instruction to require an intentional act that “caused the death of’ the victim.

Id.

Hall issued prior to the filing of the direct appeal in the present case. Montgomery issued on February 12, 2009, which was after the filing of the initial brief in Curry’s direct appeal but almost two months prior to the filing of the answer brief. This court subsequently certified conflict with the First District’s Montgomery decision in Zeigler v. State, 18 So.3d 1239, 1244-45 (Fla. 2d DCA 2009), wherein we held that the manslaughter by act instruction when considered as a whole was not erroneous. The Zeigler court, id. at 1244, noted that the holding of Montgomery conflicted with the above dicta in Hall. Zeigler, however, was effectively overruled by the supreme court’s Montgomery decision. In Ortiz v. State, 905 So.2d 1016, 1017 (Fla. 2d DCA 2005), this court held that appellate counsel performed deficiently in failing to seek supplemental briefing in order to present argument based on a Fourth District case that issued subsequently to the filing of the initial brief in the direct appeal but prior to the filing of the answer brief. Thus, pursuant to Ortiz, appellate counsel’s performance was deficient when she did not argue, based on the holding of Montgomery, that the manslaughter by act instruction was fundamentally erroneous.

As this court noted in Del Valle, 52 So.3d at 18:

To establish a claim of ineffective assistance of appellate counsel, the petitioner must show counsel’s deficient performance and that “ ‘the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.’ ” Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla.1985)).

In the present case, as in Del Valle, we hold that Curry was prejudiced by counsel’s deficient performance because had counsel argued, based on the First District’s decision in Montgomery, that the manslaughter by act instruction was fundamentally erroneous, we would have been compelled to certify conflict with Montgomery, and we can only conclude that Curry would have been afforded relief as part of the direct appeal process.

In holding that appellate counsel rendered ineffective assistance, we reject the State’s contention that Curry waived the fundamental error in the manslaughter by act instruction by agreeing to that instruction and advising against giving the manslaughter by culpable negligence instruction, thereby precluding the jury from finding him guilty of the non-erroneous option. The court in Joyner v. State, 41 So.3d 306, 307 (Fla. 1st DCA 2010), held that Joyner waived the fundamental error in the manslaughter by act instruction where he specifically agreed to the instruction at the jury charge conference and also incorporated the instruction into his closing argument. Here, Curry specifically requested that the trial court not instruct the jury on any of the lesser-included offenses of second-degree murder, and when the trial court indicated that it was going to instruct on manslaughter, Curry argued that the jury should be instructed on only one of the three ways of committing manslaughter. Curry did not agree to the manslaughter by act instruction, and he did not incorporate it into his closing argument. Furthermore, Curry did not waive the fundamental error in the manslaughter by act instruction by requesting that the trial court not instruct on manslaughter by culpable negligence. The evidence arguably did not support a culpable negligence theory of manslaughter, and the prosecutor could have requested that the jury be instructed on both theories if he felt both were applicable based on the evidence presented at trial.

Accordingly, we grant the petition. Because a new appeal would be redundant in this case, we reverse Curry’s second-degree murder conviction, vacate the sentence, and remand for a new trial. See Del Valle, 52 So.3d at 19.

Petition granted.

KELLY, CRENSHAW, and BLACK, JJ., Concur.

      . The supreme court has amended the manslaughter by act instruction on an interim basis. See In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, 41 So.3d 853 (Fla.2010).

      . In the present case, the victim was killed in December 2004. However, the language contained in section 782.07(1), Florida Statutes (2004), is identical to that contained in the 2006 statute.

      . As we stated in Del Valle, 52 So.3d at 18, “[t]his court must apply the law at the time of the appeal in determining whether appellate counsel’s performance was deficient.” However, in order to determine whether a petitioner is entitled to relief, we must apply the current law. Since the supreme court’s decision in Montgomery, this court has held that the manslaughter by act instruction was not fundamentally erroneous when the jury was also instructed on the culpable negligence theory of manslaughter. Haygood v. State, 54 So.3d 1035, 1038 (Fla. 2d DCA 2011) (certifying a question regarding whether the error in the manslaughter by act instruction is fundamental when the jury was also instructed on manslaughter by culpable negligence but the evidence did not support that theory); Barros-Dias v. State, 41 So.3d 370, 372 (Fla. 2d DCA 2010).

      . Curry argued to the jury that the State did not prove beyond a reasonable doubt that he was the person who strangled the victim. He did not discuss the offense of manslaughter.


text:
    Joseph CALANDRA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1653.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Joseph Calandra, Immokalee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Joseph Calandra (Defendant) appeals the denial of his rule 3.800(a) motion. We affirm.

For a first degree murder committed in 1992, Defendant was sentenced to prison “For a term of Natural Life without possibility of parole for 25 years.” He filed a rule 3.800(a) motion to correct illegal sentence, which the trial court denied, claiming the foregoing sentence was illegal and asking instead to be resentenced to “life in prison with twenty five years minimum mandatory with the possibility of parole.” However, that sentence is functionally the same as his current sentence. After Defendant has served twenty-five years, he will become eligible for parole. See § 775.082(1), Fla. Stat. (1991) (providing that “[a] person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole”). Therefore, no correction is necessary.

Affirmed.

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

      . This provision was amended effective May 25, 1994, by Chapter 94-228, section 1, Laws of Florida. As a result of that amendment, one convicted of a capital felony, unless sentenced to death, had to be sentenced to life imprisonment, and “[i]f convicted of murder in the first degree ... shall be ineligible for parole." § 775.082(l)(a), Fla. Stat. (Supp. 1994). However, the amendment does not affect Defendant, who committed his offense in 1992, before the effective date of the amendment.


author: WARNER, J.

text:
    J.C., the Child, Department of Children and Family Services and Guardian Ad Litem Program, Appellants, v. K.K., the Father, Appellee.
    No. 4D11-6.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Rehearing Denied July 20, 2011.

      Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP and John Walsh and Kelly P. Moore Bertisch, West Palm Beach, for appellant J.C.
    Jeffrey Dana Gillen, West Palm Beach, for appellant Department of Children and Family Services.
    Hillary Kambour, Tavares, for Guardian ad Litem Program.
    John Brewer, Lake Worth, for appellee.
   WARNER, J.

The Department of Children and Families, the Guardian ad Litem program, and the child all appeal an order of the trial court declining to terminate the rights of the father of the child. Without ever determining the manifest best interest of the child, the trial court determined that, although grounds for termination existed, termination was not the least restrictive means of eliminating harm to the child. Because the trial court failed to determine the manifest best interest, we reverse for further proceedings.

J.C., a male child, was born on December 30, 2008. The mother came to the attention of DCF in December 2008, when she tested positive for methadone while pregnant with J.C. Although J.C. tested negative for drugs at his birth, DCF filed a dependency petition after J.C.’s birth and requested that the parents complete a case plan. The court left the child with the mother, who was living with her parents, and ordered weekly visitation for the father. In January 2009, the father submitted to a drug screen, which was positive for marijuana.

In March 2009, DCF sheltered the child based on the mother’s ongoing substance abuse and history of non-compliance with DCF services. Likewise, DCF determined that it was not appropriate to place the child with the father, in light of his ongoing marijuana use and his previous history with DCF. At the shelter hearing, the court placed the child in licensed care and gave the father supervised visitation with the child.

At a mediation held in April 2009, the parties reached an agreement on the case plan tasks for the parents. In particular, the father agreed to complete the following case plan tasks: a) undergo individual and parental counseling; b) complete a substance abuse evaluation; c) complete 10 consecutive negative drug screens; d) participate in supervised visitation with the child; e) submit to a paternity test; f) demonstrate stable income; g) pay $262.50 in child support or provide in-kind services; h) refrain from any violations of law; i) maintain stable housing; and j) maintain contact with the DCF. The case plan and mediated settlement agreement further required the father to meet with the case manager at least once per month and to notify the DCF within 72 hours if he changed his phone number or address.

A few days after the mediation, the trial court adjudicated the child dependent based upon the father’s consent. The grounds for the adjudication of dependency included the father’s substance abuse issues, his previous history with DCF (which included having his rights terminated as to a different child), his failure to comply with previously offered services, and his failure to provide for J.C.’s care. The court approved the mediated case plan, which provided for a goal of reunification/adoption and set forth a goal date of December 4, 2009.

Essentially, the father failed to complete any of the case plan tasks. And after visiting with the child a few times in April 2009, he disappeared. Although the DCF case managers attempted to find him, they never located him. He did not contact his case manager or his attorney for the next year.

DCF filed a petition to terminate both parents’ rights in November 2009. While the petition was pending, the father contacted DCF in April 2010 wanting to see his son. DCF refused to provide additional services to the father, since he had abandoned his child during the preceding year and failed to comply with the case plan. On his own, however, the father attended drug counseling and parenting classes, and he was allowed to begin visits with his son. At first the child did not interact with him and viewed him as a stranger, but the child later began relating to him, more like a playmate, according to the case manager.

After several continuances of the final hearing, to which DCF objected, the case finally went to trial in October 2010. The child’s foster parents are willing to adopt, but the father sought reunification with the child. At trial, the father attempted to place the blame on DCF for the lack of communication and his failure to complete his case plan. The father gave various explanations for his lack of contact with DCF and with his son. The trial court, however, found that the father’s explanations were not credible.

The social worker assigned to enable visitation between the father and child testified that the father and child interacted very well. The father acted appropriately with the child, and the child seemed to enjoy their time together. She observed that a bond was beginning to form between the two. However, a much greater bond existed between the foster mother and the child.

Because the child had some behavioral problems, he was being seen by a child therapist. She observed one visit between the father and son. In her opinion, the child and father were not bonded. The child’s primary attachment was to the foster mother. Removing this bond would harm the child, although it is not impossible to change primary attachment figures in a child’s life. However, harm to the child in the form of behavioral problems and inability to form good relationships in the future can occur. If required, a gradual process of assimilation between the new primary caretaker and the child would be optimal and would best reduce the harm to the child. In her opinion, however, it was not in the child’s best interest to change his placement.

DCF presented the evidence of the father’s complete failure to complete any of his case plan as well as his disappearance for an entire year of the child’s life. In his defense, the father presented evidence of his present attempts to complete the same tasks that were in his case plan. He is engaged to a woman with a child whom he helps parent. They live in a home owned by his fiancée’s mother and pay her rent. He is employed, although his fiancée earns the greater amount of money in the household. He detailed the efforts he has made to stop his drug addiction and to develop his parenting skills. And he provided pictures of his home and the room he has decorated for his child should he be returned.

After hearing all the evidence, the trial court found that statutory grounds for termination were proven in that the mother abandoned the child. It also found that the father abandoned the child between May 2009 and April 2010, and failed to substantially complete his case plan tasks within nine months. The court further found that DCF made reasonable efforts to assist the father in completing the case plan. Notwithstanding the court’s findings regarding the father’s non-compliance, the court praised the father’s efforts subsequent to the case plan.

The court then made a manifest best interest finding but only as it related to the mother. The court considered the factors in section 39.810, Florida Statutes, and made the following findings, which we summarize as follows:

a) The only suitable permanent custody arrangement with a relative of the child is with the father. In addition the child has been in a preadoptive placement for over six months and has integrated into that family;
b) The mother does not have the ability and disposition to provide for the child’s food, clothing, and medical care, but the father does;
c) The mother does not have the capacity to care for the child’s safety and well-being, but the father does, and the child’s physical mental and emotional health would not be endangered upon his return to the father;
d) The child is receiving therapy for his behavioral problems;
e) The child has no relationship with his mother, but the child recognizes the father and sees him as a playmate;
f) The child’s current custodians are willing to adopt but the father seeks reunification;
g) The child “has bonded with his current custodians and their children. This bond can be transferred to the father. The likelihood that J.C. will enter into a more stable and permanent family relationship, either in his pre-adoptive placement or with his father, as a result of a permanent termination of mother’s rights is very high”;
h) There is a loving and warm relationship between the child and his foster family, but with assistance, this bond could be transferred to the father;
i) The child is too young to express a preference; and
j) The Guardian ad Litem recommended a termination of parental rights of both the mother and father.

The court terminated the parental rights of the mother but denied termination of the father’s rights. The court never made an explicit determination as to whether termination of the father’s rights was in the child’s best interest. Instead, the court determined that termination of the father’s parental rights was not the least restrictive means to protect the child from harm. The court explained: “The father’s success in completing the case plan tasks and his persistence in establishing a relationship with his son demonstrate that reunification is a reasonable and less restrictive alternative to terminating his parental rights.” The court thus re-adjudicated the child dependent and ordered the Department to file a new case plan for reuniting the father with the child. This appeal follows.

There is a two-step statutory process to terminate parental rights. First, the trial court must find a ground for termination under section 39.806. See Rathburn v. Dep’t of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). Second, the court must consider under section 39.810 what is in the manifest best interest of the child based upon all the relevant criteria. Id. Finally, because of a parent’s fundamental liberty interest in the care and custody of his child, before permanently severing the parental relationship, the state must establish that termination of parental rights is the least restrictive means of protecting the child from harm. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991); J.G. v. Dep’t of Children & Families, 22 So.3d 774, 775 (Fla. 4th DCA 2009). “This means that HRS ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.” Padgett, 577 So.2d at 571.

Once a court determines, as it did here, that a ground for termination of parental rights has been proved, section 89.810, Florida Statutes, requires that “[i]n a hearing on a petition for termination of parental rights, the court shall consider the manifest best interests of the child.” (emphasis added). Section 39.810 further provides that “[f]or the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors....” While the trial court conducted the manifest best interest determination with respect to the mother, it did not conduct the same analysis once it determined that a ground for termination of the father’s rights existed. The analysis of the statutory factors applied to the mother do not necessarily show that the best interests of the child have been determined as to the father.

The statute provides enumerated factors that the court should consider in evaluating the manifest best interests of the child:

For the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to:
(1) Any suitable permanent custody arrangement with a relative of the child. However, the availability of a nonadop-tive placement with a relative may not receive greater consideration than any other factor weighing on the manifest best interest of the child and may not be considered as a factor weighing against termination of parental rights. If a child has been in a stable or preadoptive placement for not less than 6 months, the availability of a different placement, including a placement with a relative, may not be considered as a ground to deny the termination of parental rights.
(2) The ability and disposition of the parent or parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under state law instead of medical care, and other material needs of the child.
(3) The capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home.
(4) The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child.
(5) The love, affection, and other emotional ties existing between the child and the child’s parent or parents, siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties.
(6) The likelihood of an older child remaining in long-term foster care upon termination of parental rights, due to emotional or behavioral problems or any special needs of the child.
(7) The child’s ability to form a significant relationship with a parental substitute and the likelihood that the child will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties.
(8) The length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(9) The depth of the relationship existing between the child and the present custodian.
(10) The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(11) The recommendations for the child provided by the child’s guardian ad litem or legal representative.

§ 39.810, Fla. Stat. (2010).

While the trial court found that, as to the mother, the father as well as the foster family, could constitute a suitable family placement, the court’s analysis does not comport with the statute when applied to the father. As to the father, there is not a suitable relative placement, but in any event because the child has been in a stable or preadoptive placement for over six months, the availability of another placement may not be considered as a ground for denying termination. Undoubtedly, the Legislature considered that it would not be in the child’s best interest to disrupt the child’s stable and lengthy placement with another family.

The court found that the father had the ability to provide for the child financially and the capacity to provide for the child’s mental and physical health. Little evidence was produced on this issue, because the father has never had to provide for the child’s physical and emotional health.

More importantly, while the court found that the child presently had behavioral issues and was receiving therapy, there was no evidence that the father had the capacity to deal with those issues. In fact, only the child’s therapist testified as to the child’s issues, which involve aggressive and anxious behaviors. She told the court that the child’s behavior issues would most likely increase should the child be removed from his present placement, and this would generally cause long-term relational problems.

The court did not find that the child had a significant relationship as yet with the father. Although the child was bonded to the foster family, the court found that the bond could be transferred to the father. By this determination, the court did not analyze what was in the best interest of the child but whether the father/child relationship could be resurrected. Moreover, while reintegration' was possible, the child’s therapist testified that it would have to occur over a long period of time, thus prolonging the time the child would be in foster care and lacking stability. Because the child is at the critical stage in developing his primary attachments, the therapist testified that a change during this period of his life would produce more harm. The therapist also maintained that it would not be in the child’s best interest to be removed from his current placement.

The child has existed in his present placement for over a year and recognizes his foster mother as his primary attachment. He is very bonded to her. The foster family has expressed a desire to adopt J.C. The Guardian ad Litem, the case manager, and the therapist all recommended termination of the father’s rights.

From a review of the statutory factors, many appear to lean toward a determination that it would be in the child’s best interest to terminate the father’s rights so that the child could remain in a stable, loving family and not experience any harm from a change in placement. That is why the trial court’s best interest analysis, focused on the termination of the mother’s rights, does not satisfy the statutory requirement as applied to the father. The court must conduct this analysis before denying termination. This is not an issue for the appellate court to decide in the first instance on appeal.

Without performing the best interest calculation, the court determined that termination was not the least restrictive means of protecting the child from harm. The “least restrictive means” test, however, is not intended to preserve a parental bond at the cost of a child’s future. Dep’t of Children and Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002). That standard, as noted in Padgett, means that DCF has provided a case plan with the provision of services and the time to effectuate a reunion between parent and child. See In re K.W., 891 So.2d 1068 (Fla. 2d DCA 2004). The Legislature has established that time is of the essence in completing a case plan. “The failure of the parent ... to substantially comply with the case plan for a period of 9 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment ....” § 39.806(1)(e)1., Fla. Stat. In fact, the Legislature reduced the time for substantial completion from one year to nine months in 2008. See Ch. 2008-245, Laws of Florida.

KW. is similar to this case. There, DCF sought to terminate the parental rights of a mother to her child. When the child was born, both mother and child tested positive for drugs. After removal, the mother was provided with a case plan. When she did not substantially comply, DCF sought termination which the trial court granted. The mother, S.S., contested the termination on appeal on the ground that it was not the least restrictive means because long-term relative placement was available. In rejecting long-term placement as opposed to termination, the court summarized:

In the case before us, the record demonstrates that S.S. was provided with a case plan and ample time to comply with the requirements and seek reunification. She failed to avail herself of this opportunity. Furthermore, this child has been with the maternal cousin since she was only two months old. The record supports the trial court’s finding that the child has established a parental bond with the cousin and that, due to the limited contact that S.S. has had with the child, there are minimal or no emotional ties existing between S.S. and the child. While the court is required to consider the least restrictive means, the least restrictive means test is not intended “to preserve a parental bond at the cost of a child’s future.” Dep’t of Children & Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002). Since there is little or no bond to protect and there was never a parent-child relationship to reestablish, long-term relative placement was not in the best interest of the child and was not required by the “least restrictive means” test.

K.W., 891 So.2d at 1070.

Similarly, in this case the father was given a case plan and had over a year to complete it. Instead, he disappeared from his child’s life for an entire year. And as in K.W., there is no bond to protect nor was there ever a parent-child relationship to reestablish. The child has developed a substantial bond with his foster family. As defined in Padgett, the least restrictive means test was clearly met in this case. The father’s belated attempts to become a good father amount to too little too late in terms of the least restrictive means test. The child’s interests are paramount over the father’s desire to now parent his child, where the child would have to remain in foster care for a substantial period of time to effectuate a reunion without harming the child further. The trial court’s conclusion on this issue not only was not supported by clear and convincing evidence, it was not supported by competent substantial evidence.

Thus, this case comes down to the missing analysis of what is in the child’s manifest best interest — termination or reunification? We reverse and remand for further proceedings for the court to determine this issue. The court may take additional testimony in making its decision.

POLEN and LEVINE, JJ., concur.


text:
    Paul P. FOUNTAS, Petitioner, v. John P. FOUNTAS, derivatively on behalf of himself and all similarly situated shareholders of Microcomputer Resources, Inc., a Florida corporation, Respondent.
    No. 4D11-674.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Rehearing Denied July 22, 2011.
    Harris K. Solomon of Brinkley Morgan, Fort Lauderdale, for petitioner.
    Steven N. Lippman of Rice Pugatch Robinson & Schiller, P.A., Fort Lauder-dale, for respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the portion of the circuit court’s order disqualifying counsel. On remand, the circuit court shall conduct an evidentiary hearing required by Koulisis v. Rivers, 730 So.2d 289 (Fla. 4th DCA 1999). See First Miami Secs., Inc. v. Sylvia, 780 So.2d 250, 253 (Fla. 3d DCA 2001).

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


text:
    Joseph DeLUCCA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2395.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Joseph DeLucca, Delray Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Joseph DeLucca appeals the trial court’s summary denial of his timely Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Appellant seeks to withdraw his November 10, 2008 plea to child neglect in this ease and his August 12, 2009 admission to violating probation for this charge. Through the course of the motion, appellant catalogues a host of matters and implies a variety of claims, such as, that he received ineffective assistance of counsel and that his pleas were involuntary. The motion fails to clearly identify specific grounds for relief.

Without ordering a state’s response to the motion, and without attaching any records, the trial court denied the motion explaining simply that “The Defendant entered into a negotiated plea.”

We conclude that the generalized allegations of ineffective assistance of counsel and/or that a plea was involuntary are insufficient. A motion for postconviction relief must clearly specify the grounds upon which relief is sought. See Fla. R.Crim. P. 3.850(a) (setting out the grounds that may be claims for relief in a postconviction motion). Specifying each ground for relief allows the state to respond meaningfully to each of the claims and permits the court to rule on the claims in an orderly manner.

The motion also fails to contain required information and allegations and was legally insufficient on this basis as well. The motion does not contain the information required by Florida Rule of Criminal Procedure 3.850(c). As to the suggestions of ineffective assistance of counsel, the motion does not allege that, but for the deficiency of counsel (which is not clearly specified in this motion), appellant would not have pleaded and would have proceeded to trial. Poisal v. State, 876 So.2d 1262 (Fla. 4th DCA 2004). See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Because the Rule 3.850(b) time limit has now run as to the November 2008 plea, we affirm without prejudice for appellant to file a sufficient motion within sixty days of the mandate issued for this opinion.

WARNER, POLEN and CONNER, JJ., concur.

      . Appellant entered a negotiated plea to the child neglect charge and was placed on probation. Later, he admitted violating his probation based on an arrest for domestic violence and was sentenced to fifteen days credited as time served.

      . The motion explains that due to auto accidents appellant suffered severe injuries that required numerous surgeries. The motion implies that appellant had a valid involuntary intoxication defense to the child neglect charge. See § 775.051, Fla. Stat. (2007). The basis for that charge was his operation of a motor vehicle in an impaired state while transporting his child. Appellant alleges that he became unexpectedly dizzy as a result of taking pain medication pursuant to a prescription. The motion alleges that the domestic violence charges, upon which the violation of probation was predicated, were false and that he had a defense to the violation of probation charge. The rambling motion suggests that counsel misled him as to the availability of defenses and other matters, that counsel failed to research and inform the court of his medical history and other matters, and that his medical condition and the medications he was taking rendered his plea involuntary.


text:
    Michael LASHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2714.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Michael Lasher, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Flowers v. State, 54 So.3d 1049 (Fla. 4th DCA 2011) (holding that Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), does not apply retroactively to cases on collateral review); State v. Harris, 58 So.3d 408 (Fla. 1st DCA 2011) (holding suppression was not warranted under good faith exception to exclusionary rule where vehicle search was conducted prior to issuance of Gant).

WARNER, CIKLIN and CONNER, JJ., concur.


author: MAY, J.

text:
    David MALDONADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-93.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Rehearing Denied July 22, 2011.

      Carey Haughwout, Public Defender and Karen E. Ehrlich, Assistant Public Defender, Karen E. Ehrlich, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

‘ The defendant appeals his conviction and life sentence as a habitual felony offender on charges of attempted first degree murder and attempted robbery. He argues the trial court erred in admitting several pieces of evidence because they were irrelevant. We disagree and affirm.

On his way to work, a deputy sheriff observed the defendant, who was riding a motorcycle, run a traffic light. He activated his lights and followed the motorcycle into the parking lot -of a repair shop. When the deputy asked for the defendant’s license, the defendant indicated that he did not have a license and was an Opa-Locka police officer. The defendant then pushed the deputy and started running. The deputy chased him on foot. Within a few seconds, the defendant turned around and shot at the deputy, hitting him in the back of the head.

Witnesses observed the initial encounter at the repair shop, saw the defendant with a gun and holster, observed the defendant wearing a red shirt running from the area where the deputy had fallen, and saw him hiding in a nearby condominium. A detective observed the defendant hiding behind a vehicle. When the detective identified himself, the defendant fled toward a vehicle that was pulling out of a parking space. He jumped on the vehicle, pulled the door handles, and screamed at the occupants. When he was unable to get in the vehicle, he fled, but was quickly apprehended.

Officers were able to locate a red shirt worn by the defendant, a black nylon holster, a Glock .45 caliber firearm containing eight .45 cartridges, and two spent casings not far from where the deputy had fallen. The cartridges were manufactured by the same company as the two spent casings.

A DNA analyst identified the defendant’s DNA found on the Glock. A firearms expert identified the two casings as having been fired from the Glock. She identified two other casings found in the defendant’s home that were also fired by the same Glock.

Testimony revealed that the defendant had asked another man to buy a gun for him three months prior to the shooting. The man purchased a Glock from a pawn shop for the defendant. The man had previously purchased another firearm for the defendant. A gun range manager had seen the defendant at the range several times. The defendant’s girlfriend had seen the defendant with a gun; he would carry the gun in a black holster.

The defendant gave a recorded statement to the police in which he immediately informed them that he had been in the Marines. He admitted to running a light and pulling into the repair shop. However, he indicated that he told the victim he was trying to become an officer. He was nervous when stopped because he was on probation and his license was revoked. He fled because he was nervous. He indicated that the victim pushed him and threatened to shoot him if he did not stop. He started ducking because he had learned that evasion in the Marines. He heard the gun shots, but kept running. He jumped a fence, cut his hand, and hid in the meter room of the condominium. He took off his shirt because he overheard an officer describing him as wearing a red shirt. He jumped on another vehicle to get a ride because he was scared. He adamantly denied owning a gun and claimed he had been wearing the holster for a BB gun. He indicated that a friend had brought guns to his house and left them there.

Pursuant to a search warrant, law enforcement seized the following items from the defendant’s home:

• A Glock magazine with ten .45 caliber CCI bullets.
• A twenty-eight round capacity magazine for a .45 caliber firearm that was loaded with twenty-five CCI rounds.
• Fourteen .40 caliber cartridges loaded in a magazine inside a blue box.
• A clear plastic tray with five .45 caliber CCI bullets from which police developed two latent fingerprints later identified as the defendant’s.
• A black plastic tray with .40 caliber ammunition from several different manufacturers.
• A black gun box manufactured by Glock.
• A blue gun box manufactured by Smith and Wesson.
• A receipt, found inside the black gun box, for the sale of a weapon to the defendant’s friend.
• A manila envelope with serial number KTB400 printed on it, found inside the black Glock box, containing two .45 caliber CCI casings.
• Two target range shooting silhouettes.

The defendant moved to suppress the items seized and his statement. He claimed the items seized were irrelevant and his statement did not amount to a confession and were therefore more prejudicial than probative. The State responded that the defendant made relevant admissions in his statement and the items seized established the falsity of his representations and confirmed that the gun used to shoot the deputy belonged to the defendant.

The court denied both motions and admitted the statement and the items into evidence over defense objections. The court found the seized items were probative of whether the defendant shot the victim and to show the falsity of his post-arrest statement to the police. The statement was relevant to infer consciousness of guilt. The court also permitted a witness to testify that the defendant had not been in the Marines, again to show consciousness of guilt.

The jury found the defendant guilty of attempted first degree murder and attempted robbery, a lesser included offense of carjacking. The court sentenced him to life as a habitual offender on the attempted murder conviction with a twenty-five year mandatory minimum and to a concurrent term of ten years as a habitual offender on the attempted robbery charge.

The sole issue on appeal is whether the court erred in admitting the statement, the seized items, and the witness’ testimony that the defendant was not in the Marines. He claims the evidence was irrelevant and overly prejudicial. We find the issues preserved for this appeal. Nevertheless, we find no error in the trial court’s admission of the evidence.

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. “The trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.” Jones v. State, 32 So.3d 706, 712 (Fla. 4th DCA 2010) (quoting Heath v. State, 648 So.2d 660, 664 (Fla.1994)). “It is well-settled that weapons uncovered in a search of premises controlled by a defendant can be admissible in evidence.” O’Connor v. State, 835 So.2d 1226, 1230 (Fla. 4th DCA 2003).

The defendant relies on Jones v. State, 32 So.3d 706 (Fla. 4th DCA 2010), and Huhn v. State, 511 So.2d 583 (Fla. 4th DCA 1987), to support his argument that the items seized should not have been admitted. We find the cases factually distinguishable. In each of those cases, the admission of the gun could not be connected to any relevant fact. Here, however, the cartridges found at the defendant’s house matched those found at the scene, the gun box matched the gun used in the shooting, and the other items rebutted the defendant’s statement that he did not own guns. We also find Stoll v. State, 762 So.2d 870 (Fla.2000), distinguishable. There, the admission of testimony from a rebuttal -witness about what the victim had said was found to be inadmissible hearsay. While the court commented that the State cannot use a witness to rebut statements made by the defendant when the State introduced the defendant’s testimony, the ruling actually rested on hearsay objections.

Even if the admission of these items constituted error, we would find the error harmless. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The record demonstrates beyond a reasonable doubt that the error did not contribute to the verdict.

Affirmed.

WARNER and POLEN, JJ., concur.

      . The defendant does not challenge the admission of the gun box.


text:
    Natalia G. SMITH, Petitioner, v. Geoffrey SMITH, Respondent.
    No. 4D11-354.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      Linda L. Weiksnar of Crary Buchanan, Stuart, for petitioner.
    Stuart R. Manoff and Rebecca A. Fried-en of Stuart R. Manoff & Associates, P.A., and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for respondent.
   PER CURIAM.

Petitioner, Natalia Smith (wife), petitions this court for writ of certiorari following the trial court’s denial of her motion for a protective order. Respondent, Geoffrey Smith (husband), sought his wife’s medical records, having alleged that she waived her psychotherapist-patient statutory privilege. Following a motion calendar hearing, the trial court granted the Husband’s Motion to Waive [Wife’s] Psychotherapist privilege, allowing the Husband to obtain “any and all mental health records” from the Wife, beginning in 2006.

We find that the trial court departed from the essential requirements of law by improperly relying upon the arguments of counsel as evidence and quash the January 27, 2011 order which determined that the wife is unable to assert her statutory privilege. We grant the petition for the trial court to hold an evidentiary hearing on the matter.

“Certiorari is the proper vehicle to review discovery orders that require the production of information and records that are protected by the statutory psychotherapist-patient privilege. The entry of an order compelling the disclosure of communications protected by a legal privilege is a departure from the essential requirements of the law.” Cruz-Govin v. Torres, 29 So.3d 393, 395 (Fla. 3d DCA 2010); see also Urbanek v. Urbanek, 46 So.3d 1235 (Fla. 4th DCA 2010).

The Smiths are in the middle of a dissolution proceeding. They have three minor children who are currently living with the husband. Timesharing is at issue. The husband seeks a majority of timesharing and requests that the wife have supervised visits. The wife seeks greater time with her children. The husband argues that the wife put her mental health at issue following an alleged suicide attempt in January 2010 — a calamitous event — and asserts that she therefore waived her statutory psychotherapist-patient privilege, under section 90.503, Florida Statutes (2011):

(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

The wife contests this allegation, arguing that a stipulation made by her attorney to “mental health issues” was not an admission and does not waive her privilege. She argues that the alleged calamitous event did not take place during the pen-dency of the proceedings and the timing of the calamitous event is dispositive. The wife further asserts that a hearing is required to determine whether the privilege was waived and to consider whether a less invasive means of obtaining information should be used.

Most of the “facts” giving rise to the trial court’s order finding waiver of the wife’s privilege were obtained through arguments made by husband’s counsel. As we have explained, we reject the use of unsworn assertions made by attorneys as evidence. Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982).

[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate •wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.

Id. at 1016-17. Here, where the wife made no express admission and no testimony was received, the trial court could not, without a hearing, adequately determine whether the wife placed her mental health at issue.

We find it unnecessary to reach the instant petition on the merits because we find, at the outset, that under the facts of this case the trial court could not properly determine whether the wife placed her mental health at issue without first holding an evidentiary hearing.

We grant certiorari for the trial court to hold an evidentiary hearing in which it will consider whether the wife placed her mental health at issue so as to abrogate her statutory privilege. Should the court find that the wife’s privilege was waived, it should first review her mental health records in camera prior to releasing them in their entirety to the husband. If instead the court finds, after evidentiary hearing, that the wife did not sufficiently put her mental health at issue and did not waive her psychotherapist-patient privilege, it should then consider ordering an independent psychological evaluation. We remand for further proceedings.

Petition Granted; Remanded for Further Proceedings.

GROSS, C.J., POLEN and LEVINE, JJ., concur.

      . This was approximately ten months prior to the wife filing her petition for dissolution of marriage. See discussion in footnote 2 regarding the timing of the "calamitous event."

      . Only in situations where calamitous events such as an attempted suicide occur during a pending custody dispute have courts found that the mental health of the parent is sufficiently at issue to warrant finding no statutory privilege exists. See Miraglia v. Miraglia, 462 So.2d 507 (Fla. 4th DCA 1984); Critchlow v. Critchlow, 347 So.2d 453 (Fla. 3d DCA 1977). Otherwise, the courts have instructed that the more appropriate method of securing the necessary information regarding the parent’s psychological state to aid in determining the best interest of the child is to require an independent psychological or psychiatric examination of the parent or parents. In this way, the trial court obtains essential information without interfering with the psychotherapist/ patient confidentiality privilege. See Leonard v. Leonard, 673 So.2d 97 (Fla. 1st DCA 1996); Schouw v. Schouw, 593 So.2d 1200 (Fla. 2d DCA 1992).

        Attorney Ad Litem for D.K. v. Parents of D.K., 780 So.2d 301 (Fla. 4th DCA 2001).