author: GROSS, C.J.

text:
    PALM BEACH COUNTY HEALTH CARE DISTRICT, Appellant, v. PROFESSIONAL MEDICAL EDUCATION, INC., Appellee/CrossAppellant, v. Jeff Davis, Cross-Appellee.
    No. 4D07-4170.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.
    Rehearing Denied Aug. 31, 2009.

      Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellant, and cross-appel-lee, Jeff Davis.
    Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for appellee/cross-appellant.
   GROSS, C.J.

The Palm Beach County Health Care District appeals a final judgment entered after a jury verdict. The jury awarded damages on three legal theories — tortious interference with a business relationship, defamation, and conspiracy to commit defamation and tortious interference. Each of these causes of action is derailed by a significant legal obstacle. A necessary element of tortious interference is absent and absolute immunity precludes defamation. Without the anchor of these torts, there is no compensable conspiracy. Therefore, we reverse the final judgment.

The District is a creation of statute, Chapter 2003-326, Laws of Florida, the Palm Beach County Health Care Act. Ch. 2003-326, § 3, Laws of Fla. Explicitly setting forth its intent, the Legislature recognized that it was “in the public interest ... to maximize the health and well-being of Palm Beach County residents by providing comprehensive planning, funding, and coordination of health care service delivery.” Id. at section 3, § 2. As a goal, the Act states that “[a]ll programs should be coordinated to maximize the delivery of quality health care.” Id. The District’s board “is vested with the authority and responsibility to provide for the comprehensive planning and delivery of adequate health care facilities ... and services.” Id. at section 3, § 6. Among the enumerated powers of the Board all specified in section 3 of the Act are:

a) the power “to provide services ... jointly with other public or private health care providers, with appropriate provision to reduce the costs of providing service for all users thereof’, § 6(2);
b) the power to “sue and be sued in its own name ... but with all sovereign immunity and limitations provided by the State Constitution or general law”, § 6(6);
c) the power to “borrow money and issue bonds ... [and] to levy such tax as may be authorized”, § 6(12);
d) the power to “contract with other governmental agencies or private individuals or entities as may be necessary, convenient, incidental, or proper in connection with any of the powers, duties, or purposes authorized by” the Act, § 6(18); and
e) the power to “establish criteria for the provision of health care pursuant to this act”, § 6(25).

See also Ch. 87-450, § 3, Laws of Fla. (earlier version of enabling legislation).

One of the programs established by the District was designed to enhance the medical skills of emergency medical services (“EMS”) personnel. To set up a course under the program, an educational provider would arrange with an EMS agency to present a course on a specified date and secure advance approval from the District for the course. After a provider presented the course for the EMS agency, it would receive payment directly from the District, once it had submitted certain documentation.

Dr. Jeff Davis was the District’s Trauma Agency director. The plaintiff below, ap-pellee Professional Medical Education, Inc. (“PME”), was a vendor of continuing education courses for EMS personnel. Ted Young was the owner of PME. The continuing education courses were required for EMS personnel to maintain their professional certifications. Under the District’s program, PME’s contract framework was to enter into an agreement with a Palm Beach County EMS agency to conduct educational programs for employees and then to invoice the District after the courses were provided.

The defamation count was based on a February 23, 2000 letter about PME that Davis wrote to Basic Trauma Life Support of Florida, Inc., an organization that sanctions and oversees medical training courses. Before he sent the letter, Davis and Young had butted heads over necessary documentation for reimbursement. PME contended that this letter was part of a conspiracy between Davis and PME’s competitors in delivering educational programs to damage PME’s business. As a result of the letter, Basic Trauma temporarily suspended PME’s certification pending further investigation.

The tortious interference count focused on PME’s relationship with Palm Beach County Fire Rescue, which had 1,100 employees who needed training, and the City of Greenacres, a smaller client. After PME contracted with Greenacres and Palm Beach County Fire Rescue to put on seminars, Davis told both entities that the District would not make payments for the courses. Both courses were put on “hold.” PME contended that the District’s institution of a formal bidding procedure and the creation of an approved vendor list was part of the conspiracy to deprive PME of business. PME did not submit a proposal in response to the District’s published invitation for bid.

At trial, the circuit court granted Davis’s motion for directed verdict on the defamation count, ruling that the undisputed facts demonstrated that Davis was acting within the scope of his employment with the District when he sent the February 23, 2000 letter, so that he was protected by absolute immunity under McNayr v. Kelly, 184 So.2d 428, 433 (Fla.1966). The court rejected the District’s argument that it too was immune from suit under McNayr.

The jury found against the District on the defamation, tortious interference, and conspiracy claims and awarded $692,400 in damages.

The recovery on the tortious interference count fails because the District’s “interfering” conduct was not unjustified, a required element of the tort.

The elements of tortious interference with a business relationship are: “(1) the existence of a business relationship, not necessarily evidenced by an enforceable contract, under which the plaintiff has legal rights; (2) the defendant’s knowledge of the relationship; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the interference.” See Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 385 (Fla. 4th DCA 1999). “For the interference to be unjustified, the interfering defendant must be a third party, a stranger to the business relationship.” Id. at 386; Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1294 (11th Cir. 2001). A defendant is not a “stranger” to a business relationship if the defendant “has any beneficial or economic interest in, or control over, that relationship.” Nimbus Tech., Inc. v. SunnData Prods., Inc., 484 F.3d 1305, 1309 (11th Cir.2007) (quoting Tom’s Foods, Inc. v. Carn, 896 So.2d 443, 454 (Ala.2004)).

Under Florida law, a defendant is not a stranger to a business relationship, and thus cannot be held liable for tortious interference, when it has a supervisory interest in how the relationship is conducted or a potential financial interest in how a contract is performed.

In Ethyl Corp. v. Balter, 386 So.2d 1220, 1224 (Fla. 3d DCA 1980), a guarantor of a loan between a bank and a borrower was held to be a “party” to that loan contract, so that the guarantor could not be held liable for the tort of interfering with the contract. Similarly, in United of Omaha Life Insurance Co. v. Nob Hill Associates, 450 So.2d 536, 539 (Fla. 3d DCA 1984), the court held that the future purchaser of a mortgage broker’s loan to a borrower was a “party” to that contract, so that the borrower could not maintain an action against the purchaser for tortiously interfering with the loan contract.

The case most similar to this one is Genet Co. v. Annheuser-Busch, Inc., 498 So.2d 683 (Fla. 3d DCA 1986). There the plaintiffs contracted with a beer wholesaler to purchase the wholesalership. The wholesaler’s agreement with Annheuser-Busch required Annheuser’s approval for a transfer of the business. Annheuser did not approve the transfer. The plaintiff sued Annheuser for interfering with their contract with the wholesalership. The third district affirmed a summary judgment for Annheuser, holding that it was a “party to the business relationship allegedly interfered with”; Annheuser’s contractual right “to approve or disapprove any proposed transfer” rendered it an interested third party to the plaintiffs’ agreement. Id. at 684.

Like Annheuser in Genet, the District was not a stranger to PME’s business relationships with Palm Beach County Fire Rescue and Greenacres, but was an interested third party. The District was the source of funds to pay for the services PME was to provide. Under the law of tortious interference, the District is not a “stranger” to any contract that it ultimately will fund. As the caretaker of public money raised by taxes, the District has an interest in insuring that public funds are spent for a proper purpose and in seeing that the money is spent wisely and prudently. To allow the tort of interference to apply in this case would be to discourage the District from being an aggressive caretaker of public funds. Application of the tort to a situation involving a governmental agency’s expenditure of funds “would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949) (Hand, J.) (in which court discussed the doctrine of absolute immunity for the executive branch of government); see McNayr, 184 So.2d at 431 n. 12 (quoting Gregoire with approval). For this reason, PME could not maintain a cause of action for tortious interference against the District.

This holding is consistent with the rationale behind the tort. The cause of action for tortious interference with a business relationship “recognizes that economic relations are entitled to freedom from unreasonable interference.” United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668, 672 (Fla.1979). The point of a business relationship is to advance the interests of the parties involved. Tortious interference protects the interests of parties to an agreement against interference by outsiders, who would not be liable otherwise for breach. In the case of an interested third-party, the contractual interests that tor-tious interference is intended to protect include the interests of the third-party with respect to the contract. See 2 Dan B. Dobbs, The Law of Torts, § 449 (2001); Restatement (Seoond) of Toets § 769 (1979). An interested third-party accused of tortious interference is essentially “interfering” with its own interests. This is not interference; it is freedom of contract.

PME points to American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Co., 810 So.2d 996 (Fla. 4DCA 2002), but that case is distinguishable. There we held that even though the defendant “had a relationship” with the plaintiff, the defendant could be held liable for interfering with the plaintiffs relationships with its customers. Id. at 999. Crucial to this holding in American National was the fact that the “relationships” interfered with were unrelated to the “relationship” between the plaintiff and defendant. In this case, the District had a direct connection to the crucial relationships — it was the ultimate source of funds for the seminars PME intended to give.

The fact that Davis may have harbored some “personal malice or ill-will” towards PME and Taylor does not transform this case into one for tortious interference. Because it was not a stranger to the crucial business relationships, the District’s acts did not amount to unjustified interference. As the Florida Supreme Court wrote in the first case that recognized the tort of interference,

[w]here one does an act which is legal in itself, and violates no right of another person, it is true that the fact that the act is done from malice, or other bad motive towards another, does not give the latter a right of action against the former.

Chipley v. Atkinson, 23 Fla. 206, 1 So. 934, 938 (Fla.1887) (quoted in Ethyl Corp., 386 So.2d at 1225).

On the defamation count, the circuit court properly granted Davis’s motion for directed verdict under McNayr. That case held that “executive officials of government are absolutely privileged as to defamatory publications made in connection with the performance of the duties and responsibilities of their office.” McNayr, 184 So.2d at 433. The supreme court adopted a broad view of when a government official acts “within the orbit of his duties and responsibilities” so that absolute immunity applies. Goetz v. Noble, 652 So.2d 1203, 1205 (Fla. 4th DCA 1995) (quoting McNayr, 184 So.2d at 430). Davis was acting within the orbit of his duties and responsibilities when he wrote the February 23, 2000 letter. Because the liability of the District on the defamation count is predicated on its status as Davis’s employer, the absolute immunity of Davis “necessarily requires the exoneration” of the District. Saxon v. Knowles, 185 So.2d 194, 196 (Fla. 4th DCA 1966); see Bauer v. City of Gulfport, 195 So.2d 571, 573 (Fla. 2d DCA 1967); Murphy v. City of Aventura, No. 08-20603-CIV, slip op. at 5 n. 3, 2008 WL 4540055 (S.D.Fla. Oct. 10, 2008); Medina v. City of Hialeah, No. 02-20957-CIV, 2003 WL 1562281 (S.D.Fla. Mar. 24, 2003).

Since the counts regarding the goals of the conspiracy — defamation and tortious interference — fail, so too the conspiracy count must fail. “The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.” Liappas v. Augoustis, 47 So.2d 582, 582 (Fla. 1950). “An act which does not constitute a basis for an action against one person cannot be made the basis of a civil action for conspiracy.” Buckner v. Lower Fla. Keys Hosp: Dist., 403 So.2d 1025, 1027 (Fla. 3d DCA 1981); Liappas, 47 So.2d at 582; see Days v. Fla. E. Coast Ry. Co., 165 So.2d 434, 435 (Fla. 3d DCA 1964).

For these reasons, we reverse the final judgment in favor of PME and remand to the circuit court for the entry of a final judgment in favor of the District.

WARNER and CIKLIN, JJ., concur.

      . PME’s theory was that Davis was involved in a conspiracy with Todd Soard and Barry Duff, competitors of PME. In a previous case, PME sued Soard and Duff for tortious interference, defamation, and civil conspiracy. Duff filed for bankruptcy before trial and PME obtained a final judgment against Soard. Soard later discharged PME's judgment in bankruptcy. The jury did not know about this background to the case or that PME filed against the District only after the bankruptcies of Soard and Duff precluded any recovery from them.

      . We note that another panel of this court recently applied the doctrine of absolute immunity to bar an action for tortious interference with an advantageous business relationship against a City and its employees. See City of Stuart v. Monds, 10 So.3d 1134 (Fla. 4th DCA 2009). This would be a separate ground supporting a judgment for the District on the tortious interference count.

      . This case does not fall within the exception to the general rule, where no civil wrong is the object of the conspiracy, but "the mere force of numbers, acting in unison, or other exceptional circumstances, gives rise to an independent wrong. In such cases the conspiracy itself becomes the gist of the action.” Liappas, 47 So.2d at 583; Snipes v. W. Flagler Kennel Club, Inc., 105 So.2d 164, 165 (Fla. 1958).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jimmie McKNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1140.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Jimmie McKnight, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Cooper v. State, 817 So.2d 934 (Fla. 3d DCA 2002).


author: SCHWARTZ, Senior Judge.

text:
    DELANT CONSTRUCTION CO., Appellant/Cross-Appellee, v. DORAL ENTERPRISES JOINT VENTURE, Appellee/Cross-Appellant.
    No. 3D07-1782.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Rehearing Denied Aug. 17, 2009.
    Joseph J. Portuondo; Jay M. Levy, Miami, for Delant Construction Company.
    Brett Feinstein and Alicia Almansa, for Doral Enterprises Joint Venture.
    Before COPE and ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

After a proposed development in the City of Doral collapsed because of the failure of the developer, Doral Enterprises Joint Venture, to proceed, the general contractor, Delant Construction Company, settled its claim for damages with Doral Enterprises, which agreed, among other things, to reimburse Delant for sums owed to Coreslab Structures Miami, Inc., for engineering services on the project.

In the present ease, Doral Enterprises won a money judgment against De-lant for an alleged overpayment based on the theory that it had not paid Coreslab. Delant appeals and we reverse because it is undisputed that, in the course of litigation between the two, Delant indeed settled Coreslab’s claim against it for engineering services and paid Coreslab the entire amount due. That act left Doral Enterprises totally undamaged by reason of its alleged overpayment in the original settlement and, it follows, no basis whatever to support the judgment now on appeal. To the contrary, the law does not permit a windfall by virtue of receiving “a recovery ... for damages which ... had subsequently been reimbursed.” Sharff, Wittmer & Kurtz, P.A. v. Messana, 581 So.2d 906, 907 (Fla. 3d DCA 1991), review denied, 592 So.2d 681 (Fla.1991). In other words, the prevention of unjust enrichment requires reversal of the judgment and entry of one for the appellant Delant instead. See Sharff, Wittmer & Kurtz, 581 So.2d at 907, and cases cited.

Reversed and remanded.

      . The basis of our decision makes it unnecessary to consider the very substantial alternative argument that the present proceeding by Doral Enterprises against Delant is totally precluded by an "accord and satisfaction” arising from the original settlement between the two. See Ellison v. Anderson, 74 So.2d 680 (Fla. 1954); Martinez v. S. Bayshore Tower, L.L.L.P., 979 So.2d 1023 (Fla. 3d DCA 2008).


author: PER CURIAM.,

text:
    Sidney LEVARITY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2184.
    District Court of Appeal of Florida, Third District.
    July 8, 2009.
    Rehearing and Rehearing En Banc Denied Aug. 20, 2009.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.,

Affirmed. See Hines v. State, 358 So.2d 183, 185 (Fla.1978) (“[A]n affidavit upon which a permanent revocation of probation is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence. However, an allegation concerning the commission of a crime need not be set forth with the specificity required in criminal indictments and information. The primary goal is notice comporting with minimal due process rights.”); Levine v. State, 849 So.2d 455, 457-58 (Fla. 4th DCA 2003) (Farmer, C.J., concurring) (“Defendant’s act was of the continuing kind. Her offense is willfully failing to return a rental vehicle after the term of the lease had expired. Logically, once this offense was set into being, it necessarily continued (and thus was not complete) as long as the vehicle was not returned to the lessor when it should have been.”) (footnote omitted); Rios v. State, 660 So.2d 795, 796 (Fla. 5th DCA 1995) (“Although the elements of the failure to return a hired vehicle crime and the theft crime are not the same, it is clear that the specific crime regarding a hired vehicle is generally included in the general theft statute. That is to say, if one commits the failure to return the hired vehicle crime then he has also necessarily completed the theft element of a taking with the intent to deprive the owner of the use of the vehicle.”); Evans v. State, 409 So.2d 1078 (Fla. 1st DCA 1981) (affirming revocation of probation where the affidavit charged him with two counts of burglary, but he was actually found guilty by a jury of grand larceny and aiding and abetting).


author: SHEPHERD, J.

text:
    M.H., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Respondents.
    No. 3D09-1829.
    District Court of Appeal of Florida, Third District.
    July 10, 2009.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region of Florida, and Carol J. Gillespie, Assistant Regional Counsel, for petitioner.
    Hillary S. Kambour, for Guardian ad Litem Program; Karla Perkins, for Department of Children and Families, respondents.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

M.H., the mother, petitions this Court for a writ of certiorari to review a nonfinal order granting the paternal grandmother of the child, M.P., unsupervised visitation with the child. We grant the petition and quash the order under review.

In March 2008, M.P. was removed from her mother’s custody and placed with the paternal grandmother. DCF filed a petition for dependency, to which the mother, in August 2008, consented. In June 2009, the trial court granted the mother’s motion for reunification with her daughter and, pursuant to a custody release order, the child was returned to the mother’s care. On the same day, however, the trial court entered a visitation order, allowing the paternal grandmother, “overnight weekend bi-weekly visitation and daytime visits two times during the week.” It is this order mother seeks to quash.

Section 39.509, Florida Statutes (2008), allows grandparent visitation when a child has been adjudicated dependent and taken from the physical custody of the parent. However, section 39.509(4), Florida Statutes (2008) states, “When the child has been returned to the physical custody of his or her parent, the visitation rights granted pursuant to this section shall terminate.” (emphasis added). Accordingly, the trial court departed from the essential requirements of the law when it ordered visitation with the paternal grandmother once the child was returned to M.H.’s physical custody. See T.M. v. Dep’t of Children & Families, 927 So.2d 1088, 1089 (Fla. 4th DCA 2006); L.B. v. C.A., 738 So.2d 425, 427 (Fla. 4th DCA 1999); see also Troxel v. Granville, 530 U.S. 57, 72, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (reaffirming parents’ fundamental right to make decisions concerning care, custody, and control of their children).

This opinion will take effect immediately, notwithstanding the filing of any motions for rehearing.

Petition granted; order quashed.


author: DAMOORGIAN, J.

text:
    Christopher STRAWAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4710.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Rehearing Denied Aug. 28, 2009.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The Appellant, Christopher Stra-way, appeals his conviction for first degree felony murder. In this appeal, Straway argues that the trial court should have granted a judgment of acquittal on the grounds that the evidence against him was purely circumstantial and the State had failed to disprove all reasonable hypotheses of innocence. See Orme v. State, 677 So.2d 258, 262 (Fla.1996). The standard for reviewing a trial court’s ruling on a motion for judgment of acquittal is de novo. Burkett v. State, 992 So.2d 848, 851 (Fla. 4th DCA 2008). We affirm the conviction.

The relevant facts are that the victim, J.A., was a two-year-old child. J.A.’s mother, Cheryl Aexander, was good friends with Straway and his wife, Heather Straway, and often sent J.A. to the Stra-ways’ home when she needed a babysitter. At about 8:30 p.m. on the night before his death, J.A. was dropped off at the Stra-ways’ home by his mother’s friend, Alex Guzman. J.A. stayed at the Straways’ home until he was taken to the hospital the following day. Straway was home with J.A. for the entire time. Heather Straway was at the home during some parts of that night and the following day.

At 3:50 p.m. on the day of his death, Straway discovered that J.A. was not breathing. He called to Heather Straway, who ran to J.A. and shook him, trying to get his attention. The police were called and, along with emergency medical personnel, arrived at the Straways’ home to render assistance. J.A. was taken to the hospital where he passed away. An autopsy revealed severe external bruising on J.A.’s head, severe internal bleeding in his head, and non-fatal bruises on the rest of his body. The State’s expert, Dr. Bell, concluded that J.A. died from blunt force trauma to the head as a result of being beaten and that the injuries were recent. Dr. Bell also concluded that it was unlikely, considering the severity and number of injuries, that J.A. would have appeared normal days before he lost consciousness.

In a recorded statement to the police, Straway stated that Alex Guzman dropped J.A. off at his house the night before J.A.’s death. Shortly thereafter, J.A. threw up on him. Straway cleaned J.A. in the shower, re-dressed him, and gave him Children’s Tylenol. He put J.A. in the room with his children to watch television. Straway stated that J.A. appeared not to be in pain, although earlier J.A. had fallen off the bed and hit his abdomen on a small table, resulting in a red mark about five inches long on his abdomen. The child showed no signs of distress. Both Stra-way and his wife cheeked on J.A. several times throughout the night. The next afternoon, J.A. went down for a nap. During his nap, Straway heard him coughing, checked on him, and discovered that he was not breathing.

A motion for judgment of acquittal challenges the legal sufficiency of the evidence. Remor v. State, 991 So.2d 957, 959 (Fla. 4th DCA 2008). For purposes of the motion, the defendant admits not only the facts adduced from the evidence, but also every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). However, “[a] special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence.” State v. Law, 559 So.2d 187, 188 (Fla.1989). The Florida Supreme Court has provided the following explanation of this standard:

It is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. The state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

Id. at 189 (citations omitted).

When faced with a motion for judgment of acquittal in a case where the evidence is circumstantial, the trial court must “determine whether there is [a] pri-ma facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories. If there is such inconsistency, then the question is for the finder of fact to resolve.” Orme, 677 So.2d at 262; see also Law, 559 So.2d at 188.

As his hypothesis of innocence, Straway contends that J.A.’s fatal injuries could have occurred while he was in the custody of other individuals. Straway argues that his hypothesis of innocence is entirely consistent with the evidence establishing that, during the two to three days preceding J.A.’s death, there were a number of people who had been alone with J.A., including J.A.’s mother, Alex Guzman, and the Straways’ young children. Straway contends that any one of these individuals could have inflicted the fatal wounds. He further argues that his hypothesis is supported by the testimony of Dr. Bell, who provided evidence that J.A.’s fatal injuries could have been inflicted during those time periods when the victim was with someone other than Straway.

The State counters that all of the witnesses who had contact with J.A. during the relevant time frame testified that he did not have anything more than a bump on the head, a bump on the knee, and a mosquito bite before he went to the Stra-ways’ house the night before his death. The bump on J.A.’s head appeared as early as four days before his death, which makes it unlikely to have caused his death according to Dr. Bell’s testimony. Dr. Bell also testified that it was unlikely, with the severity and number of injuries that J.A. suffered, that he would appear normal during the one to two day period before he lost consciousness. Moreover, Heather Straway testified that J.A. was running around with the other children and did not appear injured on the morning of his death. From this testimony, the jury could have reasonably inferred that J.A. was not suffering from any head injuries prior to the time Heather left him alone with Straway on the day of his death, and that he suffered the fatal injuries within hours of him having stopped breathing— the period in time when he was alone with Straway. Thus, the State presented competent evidence to contradict Straway’s hypothesis of innocence.

Contrary to Straway’s assertion, the State is not required to refute every possible variation of the events which could be inferred from the evidence. See Law, 559 So.2d at 189. For example, the State was not required to contradict Stra-way’s theory that his young children might have caused J.A.’s fatal injuries because this theory is unreasonable in light of the children’s young ages and the severity of J.A.’s injuries. “In applying the law of circumstantial evidence under Law, a court should not concoct fictional hypotheses of innocence which contradict the defendant’s implausible version of the facts in evidence.” Parker v. State, 795 So.2d 1096, 1100 (Fla. 4th DCA 2001).

The present case is distinguishable from the First District Court of Appeal’s decision in Dixon v. State, 691 So.2d 515 (Fla. 1st DCA 1997). In Dixon, the State presented evidence that the defendant’s infant daughter was brought to the hospital after she suddenly stopped breathing. Id. at 516. The child’s doctor testified that the child suffered from Shaken Baby Syndrome. Id. The defendant was charged with aggravated child abuse. Id. At trial, the State focused on the five to ten minute period during which the defendant was alone with the child when she stopped breathing. Id. The State’s expert witness, however, only narrowed the time frame for the child’s injuries to a period of four days before the child was taken to the hospital. Id. In addition, the defendant’s neighbor testified that the child was lethargic and had an enlarged head on the day before the child was brought to the hospital. Id. The child’s grandmother testified that the child was pale and cried excessively earlier in the day, and there was evidence that several people had access to or cared for the child during the four days preceding the defendant’s contact with the child. Id. Accordingly, the First District reversed the trial court’s denial of the judgment of acquittal, concluding that the circumstantial evidence was not inconsistent with the defendant’s theory that someone else had caused the child’s injuries. Id.

In Dixon, there was clear evidence that the child suffered from symptoms of Shaken Baby Syndrome, specifically an enlarged head and lethargy, before the defendant was alone with her. In addition, the State focused on a very short time period, five to ten minutes, when the defendant was alone with the child. In contrast, J.A. did not have clear signs of severe head trauma before his contact with Straway. All of the State’s witnesses who had contact with J.A. during the day before his death testified that he behaved like a normal child. And, while J.A. did throw up the night before his death, and may have had a bump on his head, he did not exhibit the same kind of telltale signs of trauma as the child in Dixon. Finally, Straway had significantly more contact with J.A. than was the case in Dixon. Straway cared for J.A. for about twenty hours before his death, and was the only adult with him for most of that time.

Fowler v. State, 492 So.2d 1344 (Fla. 1st DCA 1986), the case on which Straway relies, is also distinguishable. In Fowler, the victim died from a gunshot wound and the defendant was convicted of armed robbery and felony murder. Id. at 1345. This Court reversed because the State did not provide evidence to rebut the defendant’s theory that the victim was shot accidentally when he and the defendant were engaged in a struggle for the gun. Id. at 1350-52 (noting that much of the evidence in the case supported the defendant’s version of the facts). Here, the State presented sufficient evidence, through the testimony of Dr. Bell, that J.A.’s head injuries were not accidental. In addition, other than the non-fatal bruise on J.A.’s stomach, Straway did not argue that J.A.’s injuries could have been accidental.

We conclude that there is a prima facie inconsistency between the evidence, viewed in the light most favorable to the State, and Straway’s theory of innocence. The State presented evidence that, as a whole, rebuts Straway’s theory that someone else caused J.A.’s injuries. Thus, the State provided the jury with competent evidence from which it could exclude every reasonable hypothesis of innocence. Accordingly, the trial court did not err when it denied Straway’s motion for judgment of acquittal. We therefore affirm his conviction for first degree felony murder.

Affirmed.

POLEN and STEVENSON, JJ., concur.


text:
    Julio GARCIA, a/k/a/ Lazaro Lopez, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-16.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.
    Muller & Sommerville and Thomas D. Sommerville, Winter Park, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Beatrice MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1229.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.
    Andrean Eaton, Pembroke Pines, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Dumenigo v. State, 988 So.2d 1201 (Fla. 3d DCA 2008).


text:
    Gino PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1295.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.
    Gino Perez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See State v. Dickey, 928 So.2d 1193 (Fla.2006).


text:
    Cecilio MUNIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-205.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.
    Carlos J. Martinez, Public Defender, Melissa del Valle, Assistant Public Defender, and Valerie Jones, Assistant Public Defender, for appellant.
    Bill McCollum, Jr., and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Hunter v. State, 292 So.2d 73 (Fla. 3d DCA 1974).


author: MAY, J.

text:
    Stephen RUST, as Personal Representative of the Estate of Harry Rust, Appellant, v. Cora L. BROWN and Federal Insurance Company, Appellees.
    No. 4D08-2584.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.

      William J. McFarlane, of Law Offices of McFarlane & Dolan, Coral Springs, for appellant.
    Marian A. Lindquist of Marian A. Lind-quist, P.A., Fort Lauderdale, for appellees.
   MAY, J.

The personal representative of an estate appeals an order granting summary judgment for the surviving spouse on her objection to an allocation plan for the distribution of settlement proceeds arising from a wrongful death claim. Because we sua sponte find the order to be non-final and non-appealable, we dismiss the appeal.

The decedent died in a motor vehicle accident, which gave rise to a wrongful death claim. The personal representative of the estate is one of the decedent’s three adult sons, and a residuary beneficiary of the estate. The surviving spouse is a non-citizen.

The trust beneficiaries executed a Distribution Agreement. The agreement’s purpose was to convert a revocable trust into a qualified domestic trust (QDT) to preserve the marital deductions that are inapplicable to non-citizens and to save the estate money. See 26 U.S.C. § 2056A. The agreement specifically allocated the QDT administration expenses to be paid by the three sons. It did not address the proceeds of the wrongful death claim, despite everyone being aware of it prior to entering into the agreement.

Subsequently, the wrongful death claim settled for two million dollars, leaving $1,298 million for the estate. A dispute then arose over the responsibility for the administration expenses related to the QDT.

The surviving spouse filed a motion to compel the personal representative to sign the settlement checks. In response, the personal representative prepared an apportionment plan for the settlement proceeds. The second amended apportionment plan allocated $962,366 to the estate for reimbursement of the QDT’s administration expenses and $335,634 to the surviving spouse.

The surviving spouse filed an objection to the plan and moved for summary judgment, attaching the Distribution Agreement, a letter written by her attorney, an estate inventory which included the value of the wrongful death claim, and an economist’s report.

The personal representative filed a response, indicating that, “[pjrior to the settlement of the wrongful death action, the Parties entered into an oral agreement. As part of the Oral Agreement, [the surviving spouse] agreed to pay the expenses of the Estate out of the proceeds of the wrongful death action.” He attached his affidavit, attesting to the oral agreement. The court entered an order granting the surviving spouse’s motion for summary-judgment, giving rise to this appeal.

Rule 9.110(a)(2) of the Florida Rules of Appellate Procedure provides for “review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” “Significantly, the committee note explains that the 1996 amendment to the rule ‘does not abrogate prior case law holding that a party’s right of appeal arises when there is a termination of judicial labor on the issue involved as to that party.’ ” Klingensmith v. Ferd, & Gladys Alpert Jewish Family, 997 So.2d 436, 437 (Fla. 4th DCA 2008) (quoting Walters v. Edwards, 700 So.2d 434, 435 n. 1 (Fla. 4th DCA 1997)).

An order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party. White Palms of Palm Beach, Inc. v. Fox, 525 So.2d 518, 519 (Fla. 4th DCA 1988), abrogated on other grounds by Dobrick v. Discovery Cruises, Inc., 581 So.2d 645 (Fla. 4th DCA -1991).

Here, the order in essence sustained the surviving spouse’s objection to the personal representative’s apportionment plan. It is neither a final nor an appealable, non-final order. We must therefore dismiss the appeal.

Dismissed.

TAYLOR and LEVINE, JJ., concur.

      . Because we dismiss this appeal and remand the case for further proceedings, we note the existence of genuine issues of material fact concerning the responsibility for the administrative expenses of the QDT.


text:
    Eric CRUTCHFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3366.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Eric Crutchfield, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

STEVENSON, MAY and DAMOORGIAN, JJ., concur.


text:
    BNB CONSTRUCTION, INC., and Brian A. Bent, Petitioners, v. NICON CONSTRUCTION, INC., Respondent.
    No. 4D09-1137.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Rehearing Denied Aug. 20, 2009.

      Diane H. Tutt of Diane H. Tutt, P.A., Davie, for petitioners.
    Edward J. Kuchinski of Sivyer Barlow & Watson, P.A., Tampa, for respondent.
   PER CURIAM.

Petitioners, BNB Construction, Inc. and Brian A. Bent, seek review of an order that requires them to deposit funds from four bank accounts into the court registry. As petitioners were not parties to the litigation below when the order issued, we exercise certiorari review and grant the petition. The funds paid by Arch Insurance Company to Stonebridge Gardens, Section Two, Condominium Association, Inc. did not remain specifically identifiable in petitioners’ various business and personal accounts to permit the relief granted. M.I. Indus. USA Inc. v. Attorneys’ Title Ins. Fund, Inc., 6 So.3d 627 (Fla. 4th DCA 2009).

TAYLOR, HAZOURI and DAMOORGIAN, JJ., concur.


author: ORFINGER, J.

text:
    Rachael FULLER, Appellant, v. Michael FULLER, Appellee.
    No. 5D08-3211.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.
    Rehearing Denied Aug. 5, 2009.
    Steven J. Guardiano, Daytona Beach, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellee.
   ORFINGER, J.

Rachael Fuller, the mother, appeals from the final judgment of dissolution of marriage from Michael Fuller, the father, arguing that the trial court erred by awarding primary residential custody of the parties’ three-year-old son to the father and imputing an annual income of $30,000 to her. The father concedes that the amount of imputed income is not supported by competent evidence and that remand on that issue is appropriate. We conclude that the trial court’s ruling on primary residential custody is likewise unsupported by competent evidence and reverse for further proceedings.

The parties’ three-year marriage produced one child who was two-and-one-half years old when the dissolution proceedings commenced. The primary dispute at trial centered on child custody. At the conclusion of the trial, the court discussed the factors governing primary residential custody and found the parties to be generally equal except in one respect:

THE COURT: Frankly, the only fact that the Court finds to be important and relevant in addition to those factors would be the wife’s apparent disposition to draw unreasonable and alarming and hysterical inferences from innocuous facts.
Now, based on these factors, this is basically a case in which the Court will make a determination as to who should be the primary residential parent, based on a negative, which the wife’s predisposition to draw hysterical and unreasonable inferences from innocuous facts, that appears to be the linchpin in the case and the Court will award the husband the primary residential parent [sic] as a result and in the hopes the husband will maintain some level of flow in control, so that we do not have unreasonable positions that were taken in so far as normal activities for the child, such as being exposed to someone having cocktails or such as climbing a flight of stairs or being in a home that has a swimming pool.

These findings were incorporated into the written final judgment, and after the mother’s motion for rehearing was denied, this appeal followed.

In making an initial custody determination, the trial court must evaluate the noninclusive factors set forth in section 61.13(3), Florida Statutes (2007), and determine what residential arrangements would be in the best interests of the child. See Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998); see also Burgess v. Burgess, 347 So.2d 1078, 1079 (Fla. 1st DCA 1977) (stating that polestar for guidance in custody proceedings is best interests of child). Here, the record supports the trial court’s determination that both parents were equal in most respects. The record shows that both parents were likely to allow the other frequent and continuing contact with the child and both parents have love, affection, and emotional ties with their child. However, there was no competent, substantial evidence to support the trial court’s ultimate determination, the “linchpin” as the court deemed it, that the father should be awarded primary residential custody of the child based on the mother’s “apparent disposition to draw unreasonable and alarming hysterical inferences from innocuous facts.” For example, contrary to the trial court’s determination that the mother’s concern about the effect of the father’s smoking on the child was “irrational,” it was not disputed that the father is a smoker and the child has asthma and allergies, which are treated with numerous medications. Further, her concern about liquor being in the home was founded on the father’s failure to childproof the liquor cabinet, medicine cabinet or any other part of the house and not, as the trial judge concluded, based on a concern that the father was an alcoholic or prescription drug abuser.

Because these factors weighed so heavily in the trial court’s decision, we must remand the matter for a new trial. We affirm the final judgment to the extent that it dissolved the parties’ marriage. We reverse the remainder for a new trial before a different judge.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO, C.J., and GRIFFIN, J., concur.


text:
    Dolph Lee HERRINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-4851.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Dolph Lee Herrington, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, WEBSTER, and CLARK, JJ., concur.


text:
    Tyrone K. COOK, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2422.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Tyrone K. Cook, pro se, Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Tyrone Cook, appeals the trial court’s summary denial of his rule 3.850 motion. The appellant specifically challenges the trial court’s denial of his motion for leave to supplement the 3.850 motion. We reverse both orders and remand for the trial court to allow the appellant to supplement his rule 3.850 motion.

Under the mailbox rule, the appellant timely filed his motion for leave to supplement his rule 3.850 motion on March 30, 2006, within two years of the date his judgment and sentence became final. See Earls v. State, 958 So.2d 1153, 1153 (Fla. 1st DCA 2007); Fla. R.Crim. P. 3.850(b). Although the trial court signed the order summarily denying the appellant’s rule 3.850 motion on March 30, 2006, the order was not rendered until March 31, 2006, when it was filed with the clerk. , See Fla. R.App. P. 9.020(h). Accordingly, the appellant had the right to supplement his rule 3.850 motion because it was filed within the two-year time limit and before the trial court ruled on the merits of his rule 3.850 motion. See Samuels v. State, 973 So.2d 662 (Fla. 4th DCA 2008).

REVERSED and REMANDED.

ALLEN, VAN NORTWTCK, and ROBERTS, JJ., concur.


text:
    Louis REED, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3204.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Louis Reed, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, WEBSTER, and CLARK, JJ., concur.


text:
    Reginald Evans KIRTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0402.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, we agree with appellant that the state committed a discovery violation when it failed to disclose a recording of a conversation between appellant and his mother made while appellant was in jail awaiting trial, and that the trial court failed to comply with the requirements of Richardson v. State, 246 So.2d 771 (Fla.1971). However, having carefully reviewed the record, we are satisfied to the exclusion of all reasonable doubt “that the defense was not procedurally prejudiced by the discovery violation.” Scipio v. State, 928 So.2d 1138, 1150 (Fla.2006) (citing State v. Schopp, 653 So.2d 1016, 1021 (Fla.1995)). Accord Smith v. State, 7 So.3d 473, 506-07 (Fla. 2009). Accordingly, we affirm.

AFFIRMED.

WOLF, WEBSTER and CLARK, JJ., concur.


author: ROTHENBERG, J.

text:
    Domingo MERCADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1773.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Domingo Mercado, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Domingo Mercado (“Mercado”) appeals the trial court’s order denying his motion to correct illegal sentences imposed in the eight cases listed above. The gravamen of Mercado’s complaint is the Prison Releas-ee Reoffender adjudications and resulting mandatory sentences imposed on each count of burglary of an unoccupied dwelling. Although Mercado correctly notes that the Florida Supreme Court in State v. Huggins, 802 So.2d 276 (Fla.2001), held that the Prison Releasee Reoffender statute did not apply to burglary of an unoccupied dwelling, his reliance on Huggins is misplaced as the Legislature amended the statute, effective July 1, 2001, to include burglary of an unoccupied dwelling as a qualifying offense under the statute. As Mercado’s crimes were all committed after July 1, 2001, the trial court correctly denied Mercado’s motion.

Affirmed.


text:
    Roosevelt Rudy PERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1458.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Roosevelt Rudy Perry, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Affirmed. Flores v. State, 745 So.2d 977 (Fla. 3d DCA 1999); Holmes v. State, 650 So.2d 1093 (Fla. 3d DCA 1995); § 921.16(1), Fla. Stat. (2005).


text:
    Chentee Maurice KEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1513.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Chentee Maurice Key, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Because the motion was filed within two years after the issuance of the mandate in Key v. State, 990 So.2d 529 (Fla. 3d DCA 2008), it could also be viewed as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

In the motion, defendant-appellant Key contends that the charging document and verdict form do not support a conviction under subsection 794.011(3), Florida Statutes (1995), for armed sexual battery. For counts one, two, and three, the jury checked a box on the verdict form finding the defendant “GUILTY of Sexual Battery while armed with a deadly weapon or in the process used physical force likely to cause serious injury[.]” The jury did not check a box stating that “the deadly weapon used was a firearm[.]”

The defendant argues that on counts one through three he was charged with possessing a firearm or destructive device during the sexual battery. He points out that the charging document did not contain an allegation that he used “actual physical force likely to cause serious personal injury....” § 794.011(3), Fla. Stat. (2005). He maintains that his offense must be reduced to the lesser included offense of sexual battery under subsection 794.011(5), Florida Statutes (2005).

We have taken judicial notice of the defendant’s file in his direct appeal. The identical issue was raised in the defendant’s initial brief and the motion for rehearing. We did not address the issue in the panel opinion, but we denied the motion for rehearing by unpublished order, stating, “The motion for rehearing is denied on the merits on authority of the controlling and indistinguishable case of DuBoise v. State, 520 So.2d 260, 264-65 (Fla.1988).” As the issue has already been decided, we affirm the order now before us.

Affirmed.


author: COPE, J.

text:
    Angel Roberto GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1553.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Angel Roberto Gonzalez, in proper person.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and CORTIÑAS, JJ.
   COPE, J.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal 3.850. We remand for further proceedings.

Defendant-appellant Gonzalez was convicted of armed burglary and false imprisonment. In point one of his motion, the defendant contends that his trial counsel was ineffective for failing to move for a judgment of acquittal on the ground that the evidence was legally insufficient to support the proposition that the defendant was armed during the burglary. He asserts that the evidence only supported the charge of unarmed burglary.

The victim testified that his vehicle was stopped by an individual impersonating an FBI agent. He identified the defendant from a photo lineup as the perpetrator, although the victim was unable to make identification at trial. The victim stated that the perpetrator took several items of personal property, plus a fanny pack containing a firearm. Because of the taking of the fanny pack containing the firearm, the defendant was convicted of armed burglary, as opposed to unarmed burglary. The defendant alleges that there was no evidence which would support an inference that the defendant knew what was inside the fanny pack. The defendant asserts that such a motion, if made, would have been successful. See Barrett v. State, 983 So.2d 795, 796 (Fla. 4th DCA 2008).

The State filed a response in the trial court, arguing that the defendant did, in fact, make a motion for judgment of acquittal, which was denied. However, the defendant alleges that this was a boilerplate motion for judgment of acquittal, and that counsel failed to argue the absence of evidence establishing that the defendant knew what was in the fanny pack at the time that he took it. The State’s trial court response cited the transcript pages containing the motion for judgment of acquittal, but the State did not attach it to the trial court response. For present purposes, we must accept the defendant’s characterization that counsel failed to address with specificity the claimed deficiency in proof of the “armed” portion of the armed burglary charge.

The Florida Supreme Court has said that a boilerplate motion for judgment of acquittal is legally insufficient. Woods v. State, 733 So.2d 980, 984-85 (Fla.1999) (“Florida Rule of Criminal Procedure 3.380 requires that a motion for judgment of acquittal ‘fully set forth the grounds on which it is based.’ ”). It follows that the defendant has made “a facially sufficient claim for postconviction relief,” Boykin v. State, 725 So.2d 1203, 1203 (Fla. 2d DCA 1999), and we must remand for further proceedings.

In point three, the defendant argues that his trial counsel was ineffective for failing to object that unadmitted evidence was sent to the jury room. The State responded, and the trial court agreed, that this argument was procedurally barred because it was raised in the defendant’s direct appeal to this court. The State’s argument was misplaced under the circumstances of this case.

In the direct appeal, the defense argued that a document entitled “Miami-Dade Police Department, Doral District, Residential Burglary, Intelligence Bulletin,” was inadvertently admitted into evidence and given to the jury. According to the brief in the defendant’s direct appeal, the Intelligence Bulletin contained inadmissible evidence of other crimes. In response in the direct appeal, the State argued first, that the record was not entirely clear about whether this document did, or did not, go to the jury. The State maintained that testimony from the attorneys and courtroom clerk, or possibly other individuals, would be needed in order to determine what exhibits went to the jury. Second, the State argued that trial counsel had made no objection to any of the trial exhibits, and therefore the issue was not preserved for appellate review. The State made no other arguments on direct appeal on this issue.

In his Rule 3.850 motion the defendant alleges that the objectionable document went to the jury and that his trial counsel was ineffective for failing to object. This is a facially sufficient claim. See Harris v. State, 826 So.2d 340, 341 (Fla. 2d DCA 2002).

On appeal from a summary denial of a motion for postconviction relief, this court is required to reverse an order denying a facially sufficient claim unless the record shows conclusively that the appellant is not entitled to any relief. Fla. R. App. P. 9.141(b)(2)(D). We, therefore, remand for further consideration of points one and three, or for an evidentiary hearing. If the trial court again summarily denies the motion, it must attach documents conclusively refuting the defendant’s claim.

Reversed and remanded for further proceedings consistent herewith.

      . The defendant's appeal was affirmed without opinion. Gonzalez v. State, 981 So.2d 1211 (Fla. 3d DCA 2008).

      . In his pro se brief, the defendant has withdrawn point two of the rule 3.850 motion.


text:
    Corey O’NEAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-883.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Corey O’Neal, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The defendant, Corey O’Neal (“O’Neal”), appeals the trial court’s summary denial of his motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.850. We affirm.

In 2003, O’Neal was found guilty of one count of robbery with a firearm and one count of aggravated assault. He was sentenced to sixty years incarceration with a ten-year mandatory sentence as to the armed robbery. This Court affirmed O’Neal’s convictions and sentences on June 16, 2004. O’Neal v. State, 876 So.2d 569 (Fla. 3d DCA 2004).

On June 13, 2006, O’Neal filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of trial counsel based on counsel’s (1) failure to call two alibi witnesses; (2) decision to permit co-counsel to cross-examine an eyewitness and the lead detective; and (3) failure to object to the introduction of a lineup, where O’Neal’s photograph allegedly contained numbers suggesting a prior arrest. The trial court denied the motion, finding that O’Neal’s claims were insufficient under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

After the trial court’s denial of O’Neal’s rule 3.850 motion, O’Neal filed a motion which he labeled as an “addendum” to his initial motion for postconviction relief. The “addendum” motion listed an additional claim of ineffective assistance of trial counsel — counsel’s failure to object to the trial court’s refusal to read a portion of the trial testimony back to the jury after it had begun its deliberations. Because the trial court had denied O’Neal’s initial motion for postconviction relief before O’Neal filed the second motion, which he styled as an “addendum,” the trial court found that the second motion was successive, and denied it on November 22, 2006. This Court affirmed the trial court’s order denying relief. O’Neal v. State, 947 So.2d 1177 (Fla. 3d DCA 2007).

On December 11, 2008, O’Neal filed the instant motion seeking postconviction relief under rule 3.850, alleging that trial counsel was ineffective because he: (1) misadvised O’Neal regarding the length of sentence he would serve if convicted; (2) failed to exercise a challenge against a biased juror; and (3) pursued a theory that conceded guilt. The trial court concluded that the motion was successive and thus, procedurally barred, and therefore denied relief. This appeal followed.

On appeal, O’Neal disputes the trial court’s treatment of his “addendum” motion in 2006 as a successive motion for postconviction relief, and challenges the trial court’s ruling that the instant motion is a successive motion. We find these arguments to be procedurally barred and without merit. O’Neal appealed the trial court’s November 22, 2006 order, and this Court affirmed. Thus, this Court already has adjudicated O’Neal’s argument regarding the propriety of the November 22, 2006 order. See State v. McBride, 848 So.2d 287, 290 (Fla.2003) (explaining that collateral estoppel prevents identical parties from relitigating the same issue(s) that were previously decided). Nonetheless, the instant rule 3.850 motion, which O’Neal filed on December 11, 2008, was properly denied because it was not only successive, but untimely. See Fla. R.Crim: P. 3.850(b).

Affirmed.


text:
    I.D., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and The Guardian Ad Litem Program, Appellees.
    No. 3D08-3307.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.

      Steven Grossbard, for appellant.
    Karla Perkins, Miami, for appellee, Department of Children and Families; and Hillary S. Kambour, for appellee, The Guardian Ad Litem Program.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, J.

I.D. (“father”) appeals from a final order terminating his parental rights as to G.D. Because there is clear and convincing evidence that the father engaged in egregious conduct under section 39.806(l)(f), Florida Statutes (2008); and sexual abuse, aggravated child abuse and/or chronic abuse under section 39.806(l)(g), we affirm the trial court’s order terminating the father’s parental rights on the basis of these findings. Because the trial court’s order (perhaps confusing the father’s case with that of G.D.’s mother) also finds abandonment under section 39.806(l)(b), and there is no evidence to support this finding, we reverse and remand with instructions to strike that portion of the trial court’s order.

The evidence presented reflects that when G.D. was two years of age, her mother signed a power of attorney permitting G.D. to live with a maternal cousin (“caretaker”) in Puerto Rico. G.D. visited her father in Miami twice and reported sexual abuse by her father on both occasions. G.D. testified that during her first visit with her father, at age six, her father used his penis, fingers, or tongue to penetrate her on a daily basis. Despite her father’s threats of physical abuse, G.D. informed her caretaker in Puerto Rico, but asked her caretaker not to contact the police.

At age nine, G.D. was forced to visit her father again after he threatened to beat her caretaker if G.D. did not visit him. G.D. testified that her father beat his wife when she refused to leave the house. She also described that her father would hold her down when he penetrated her; that he bit her on the chest, buttocks, and hands; and he would stick his tongue in her mouth when he kissed her. When G.D. developed two small lumps inside her vagina, her father made G.D. spread her legs and he examined her. G.D. was taken to Miami Children’s Hospital, where she was examined and questioned by a doctor.

After performing an investigation, Florida Department of Children and Family Services (“DCF”) filed a petition for termination of parental rights as to both the mother and the father based on the Child Protective Team’s report and meetings with the child, detective, nurse and attending physician. Although the report did not provide specific medical evidence of sexual trauma, DCF concluded that based on the meetings and surrounding circumstances, it was likely that G.D. suffered sexual abuse by her father.

The case proceeded to an adjudicatory hearing, at which G.D., DCF and the Guardian Ad Litem (“GAL”) testified. G.D. repeatedly stated that she never wanted to see her father again. Both DCF and GAL strongly recommended that the father’s parental rights be terminated.

After hearing all of the evidence and finding G.D.’s undisputed testimony credible, the lower court submitted a written order terminating the father’s parental rights for engaging in egregious conduct, § 39.806(l)(f), sexual abuse pursuant to section 39.806(l)(g), as defined in section 39.01(67); aggravated child abuse, as defined in section 827.03, sexual battery or sexual abuse, as defined in section 39.01 or chronic abuse, § 39.806(l)(g); and for abandonment pursuant to section 39.806(l)(b), as defined in section 39.01(1).

In the termination of parental rights, DCF has the burden to prove by clear and convincing evidence abuse, neglect or abandonment, or that the child is at substantial risk of future abuse, neglect or abandonment. See T.V. v. Dep’t of Children & Family Servs., 905 So.2d 945, 946 (Fla. 3d DCA 2005) (citing E.K.B. v. Dep’t of Children & Families, 724 So.2d 720, 721 (Fla. 3d DCA 1999)). The standard of review where a trial court terminates parental rights on the basis of egregious conduct, is whether the order is supported by competent substantial evidence. T.V., 905 So.2d at 946. A trial court’s determination that clear and convincing evidence supports 'the termination of parental rights will not be overturned, unless found to be clearly erroneous or lacking in evidentiary support: R.P. v. Dep’t of Children & Family Servs., 975 So.2d 435, 436 (Fla. 2d DCA 2007); F.R. v. Dep’t of Children & Family Servs., 826 So.2d 449, 450 (Fla. 5th DCA 2002); M.R. v. Dep’t of Children & Family Servs., 783 So.2d 277, 278 (Fla. 3d DCA 2001) (citing In Re M.F.G. v. Dep’t of Children & Families, 723 So.2d 290 (Fla. 3d DCA 1999)).

EGREGIOUS CONDUCT/SEXUAL ABUSE

Section 39.806(l)(f) provides for termination of parental rights where a parent engages in egregious conduct that “threatens the life safety, or physical, mental or emotional health of the child.” Section 39.806(l)(f)(2) defines “egregious conduct” as:

[A]buse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.

In dependency adjudications, it is within the province of the trial court to weigh the evidence presented and to make credibility determinations. M.R., 783 So.2d at 278; see also Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976) (“It is not a function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it”)

A parent’s sexual abuse of a child is “egregious conduct.” See, e.g., N.R.R. v. Dep’t of Children & Families, 959 So.2d 359, 359-60 (Fla. 3d DCA 2007); Dep’t of Children & Families v. B.B., 824 So.2d 1000, 1007 (Fla. 5th DCA 2002) (finding sexual abuse of siblings sufficient to terminate father’s parental rights to other children for “egregious conduct”). The acts described by G.D. clearly constitute sexual abuse and egregious conduct. The father argues, however, that in the absence of physical evidence or testimony of “professionals” to corroborate G.D.’s testimony, DCF failed to prove sexual abuse or egregious conduct by clear and convincing evidence. We disagree.

Neither physical evidence nor expert testimony is required to establish sexual abuse or egregious conduct by clear and convincing evidence. See G.C. v. Dep’t of Children & Families, 791 So.2d 17 (Fla. 5th DCA 2001) (upholding a finding of sexual abuse by the father despite lack of physical evidence). Moreover, sexual abuse does not require penetration and can occur without any physical manifestations.

The evidence relied upon by the trial court was primarily introduced through G.D., who was one day shy of her tenth birthday when she testified at the adjudicatory hearing. The trial court determined that G.D. understood the difference between the truth and a lie and found her testimony to be credible. The record supports that finding, and G.D.’s testimony was unrebutted and consistent throughout both direct and cross-examinations. Because it is the trial court that weighs the evidence and determines the credibility of witnesses, and the trial court’s findings are supported by competent substantial evidence, we affirm the trial court’s termination of the father’s parental rights on the basis of egregious conduct under subsection (l)(f), and sexual abuse under subsection (l)(g). As stated earlier, because the record does not support a finding based upon abandonment, we reverse that portion of the trial court’s order with instructions to strike the unsupported ground for termination of the father’s parental rights.

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

      . This appeal only involves the termination of the father's parental rights.


text:
    Mario LOT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1878.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.

      Horan, Wallace & Higgins, Key West, and Cara Higgins, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

Mario Lot (“the defendant”) appeals his conviction and sentence for grand theft. We affirm.

The victim, Cole Mayer (“Cole”), is the beneficiary of a substantial trust established by his biological father, who was a part owner of Sloppy Joe’s Bar/Restaurant in Key West, Florida. Cole’s biological father died when Cole was two years old. When Cole was approximately six years old, the defendant and Cole’s mother became romantically involved, and the defendant helped Cole’s mother with household finances and bill-paying. Cole and the defendant enjoyed a father-son relationship.

Upon his eighteenth birthday (late in 2006), Cole sought and obtained the defendant’s advice on obtaining access to the trust. In January 2007, the defendant asked Cole for a $5,000 loan to pay a gambling debt the defendant had incurred. Cole wrote the defendant a check, and specifically noted on the memo line, “Loan Dad.” Cole testified that he told the defendant that this was a one-time thing, and that he would never again finance the defendant’s gambling. Although Cole was aware that the defendant was a gambler, he testified that when he loaned the defendant $5,000, he was unaware the defendant had a gambling problem.

Cole subsequently provided the defendant with a number of signed, blank checks, expecting the defendant to use the checks to pay some of Cole’s attorney and home improvement expenses. However, the defendant used the blank.checks to repay additional gambling debts, totaling over $100,000. Thereafter, Cole, his mother, and a family friend held an intervention, where they confronted the defendant with his gambling, and offered to assist him with getting help. The defendant admitted to having a gambling problem, vowed to repay Cole in full, and attempted to settle the matter without the authorities getting involved, however, Cole ultimately reported the theft to the police.

The defendant hired Joseph Spataro, who represented the defendant as defense counsel for five months, until Spataro accepted a position with the State Attorney’s Office in Key West. Before trial, the defendant moved to disqualify the entire Monroe County State Attorney’s Office. At the hearing, Spataro testified that after terminating his representation of the defendant and becoming employed by the Monroe County State Attorney’s Office, he was fully screened from the defendant’s prosecution, and he did not discuss the case with any of his colleagues or supervisors. The trial court denied the defendant’s motion to disqualify, and the case proceeded to trial.

During defense counsel’s cross-examination of Cole, the State objected to defense counsel’s attempt to highlight Cole’s gambling habits, contending that the questions were irrelevant to the true issue in the case — whether Cole had consented to the defendant’s use of the blank checks to finance his gambling. Defense counsel responded that he wanted to delve into Cole’s gambling to refute his testimony that he was unaware that the defendant had a gambling problem. The trial court sustained the objection, finding that the testimony sought was irrelevant evidence seeking only to establish bad character.

At the conclusion of the trial, on rebuttal closing argument, the prosecutor explained to the jury that people with addictions involving drugs, alcohol, or gambling, often do “evil things” in furtherance of their addiction — even to those they love — and those acts are not always performed in a sophisticated manner. Defense counsel objected and moved for a mistrial, arguing that the State had impermissibly suggested that the defendant was an alcoholic or a drug addict. The trial court denied the motion, the jury found the defendant guilty of grand theft, and this appeal followed.

The defendant contends that reversal is necessary because: (1) the trial court im-permissibly limited the cross-examination of Cole; (2) the trial court erred in denying the defendant’s motion for mistrial based upon the prosecutor’s statements during rebuttal closing argument; and (3) the entire Monroe County State Attorney’s Office should have been disqualified.

The Cross-Examination of Cole

The trial court limited defense counsel’s cross-examination of Cole by sustaining the State’s objection to a line of questioning regarding Cole’s gambling with his friends, where the defendant did not participate. The trial court found that these questions were irrelevant, and tended only to establish Cole’s bad character. On appeal, we review the trial court’s limitation of defense counsel’s cross-examination for an abuse of discretion. Moore v. State, 701 So.2d 545, 549 (Fla.1997) (“Limitation of cross-examination is subject to an abuse of discretion standard.”); accord Diaz v. State, 747 So.2d 1021, 1023 (Fla. 3d DCA 1999).

The defendant argues that the trial court abused its discretion by limiting his cross-examination of Cole and not allowing him to develop his main defense — that Cole was aware of the defendant’s gambling debts, that he willingly loaned the money to the defendant, and that he was aware that the money was going to be used to pay off the defendant’s gambling debts. We do not find that the limitation of defense counsel’s cross-examination was ' error. The record conclusively establishes that the defendant had a full opportunity to present testimony related to his defense, including testimony that Cole played poker with the defendant, and Cole was aware that the defendant gambled. The trial court’s limitation of defense counsel’s cross-examination of Cole pertained only to Cole’s own gambling habits in the absence of the defendant, which we agree was irrelevant and was properly excluded.

The State’s Rebuttal Closing Argument

During its rebuttal closing argument, the prosecutor made the following comments to the jury:

[T]he defense is somehow asking you to speculate that, oh, why would the defendant steal from this young man who he loves so much. Well, it’s an unfortunate thing, but addiction is evil. It’s an evil thing.
People who are addicted to drugs steal from their families. People who are addicted and who are alcoholics do some pretty evil things, too. People, they drive drunk, things that you wouldn’t expect them to do in order to get their alcohol. People who need their drugs do lots of things in order to get their drugs. Gambling is just as bad. This defendant had a gambling problem and was in such hot water with his bookies that he had to go and steal money from somebody. Where’s he going to get the money from? Well, the deepest well that he knows that he’s got some power over belongs to his stepson. Where else is he going to get the money? Is it smart? No.... It doesn’t mean he didn’t do it.

The trial court denied the defendant’s contemporaneous objection and subsequent motion for a mistrial, finding that the testimony did reflect that the defendant had a gambling problem, which could be fairly characterized as an addiction, and that to suggest that people with addictions are often driven to out-of-character acts is “within the ambit of logic and common sense.”

On appeal, the defendant argues that these comments prejudicially influenced the jury, and the trial court’s denial of his motion for mistrial amounts to reversible error. We disagree, as the defendant has failed to demonstrate any abuse of discretion. Goodrich v. State, 854 So.2d 663, 664 (Fla. 3d DCA 2003) (“The control of comments made to the jury by counsel is within the discretion of the trial court, and an appellate court will not interfere unless a party demonstrates an abuse of discretion.”).

In this ease, the record is replete with references made by both parties to the defendant’s gambling problem. The testimony, admitted without defense objection, revealed that the defendant had been referred to Gambler’s Anonymous, and was otherwise going to seek help, and that Cole, his mother, and a friend held an “intervention” for the defendant regarding his gambling. It was no great stretch of logic for the prosecutor to suggest that, like people addicted to drugs and alcohol, those with gambling addictions often act in inexplicable fashions, and sometimes, to the detriment of those they love. See id. (noting that attorneys have great latitude in presenting closing arguments, provided that they adhere to the evidence presented to the jury, or logical inferences therefrom).

Our conclusion is bolstered by the fact that the State’s comments were made in direct response to the defendant’s closing argument that the defendant’s easily-traceable actions indicate a non-criminal motive or intent. See Stancle v. State, 854 So.2d 228, 229 (Fla. 4th DCA 2003) (“A prosecutor’s argument should be examined in the context in which it is made.”). Thus, because the State’s rebuttal closing argument was both grounded in the evidence presented to the jury, and was made in direct response to a line of argument commenced by the defendant, we hold that the trial court acted within its discretion by allowing the prosecutor’s argument and denying the defendant’s subsequent motion for a mistrial.

The Defendant’s Motion to Disqualify

Prior to trial, the defendant moved to disqualify the Monroe County State Attorney’s Office, based on the fact that after Joseph Spataro discontinued his representation of the defendant, he became employed by the State. Ms. Vogel, Spataro’s immediate supervisor, was the prosecutor assigned to the instant case.

At the hearing on the defendant’s motion to disqualify the Monroe County State Attorney’s Office, both Spataro and Vogel offered clear and uncontroverted testimony establishing that they never discussed the defendant’s case, no confidential information was exchanged, and Spataro did not see the file or assist in the prosecution of the case in any capacity. In addition, Spataro instructed his assistant at the State Attorney’s Office to screen him from all correspondence involving this case, and to keep it from his view. Finding that the defendant failed to demonstrate actual prejudice, and that Spataro (who was obviously disqualified) had been fully screened from his former client’s prosecution, the trial court denied the motion and allowed the case to proceed. The defendant now argues that this denial amounts to reversible error.

“[I]mputed disqualification of the entire state attorney’s office is unnecessary when the record establishes that the disqualified attorney has neither provided prejudicial information related to the pending criminal charge nor has personally assisted, in any capacity, in the prosecution of the charge.” State v. Fitzpatrick, 464 So.2d 1185, 1188 (Fla.1985); see also Mackey v. State, 548 So.2d 904, 905 (Fla. 1st DCA 1989) (finding that for the purposes of disqualification, a State Attorney’s Office is not comparable to a law firm). In response, the defendant argues that Popejoy v. State, 597 So.2d 385 (Fla. 3d DCA 1992), is controlling. We disagree, as that case is clearly distinguishable.

In Popejoy, the record established that the defendant’s former counsel communicated with the prosecutor and sat at the prosecution’s table during a hearing concerning the defendant. Id. at 335. Accordingly, this Court held that the disqualification of the entire State Attorney’s Office (in Monroe County) was appropriate. Id. at 336. In the instant case, however, the defendant was unable to offer any evidence suggesting that any inappropriate contact occurred between his former attorney and the prosecutor involved in the case. While Spataro’s “switching of sides” likely left the defendant with a regrettable sting, in the absence of actual prejudice, disqualification of the entire State Attorney’s Office was not required. See State v. Fields, 954 So.2d 1218, 1220 (Fla. 3d DCA 2007) (holding that in the absence of actual prejudice, the disqualification of an entire State Attorney’s Office constitutes a departure from the essential requirements of law).

Thus, the trial court correctly denied the-defendant’s motion to disqualify the entire Monroe County State Attorney’s Office.

Conclusion

The trial court acted within its discretion by limiting defense counsel’s cross-examination of Cole and permitting the prosecutor’s comments during the State’s rebuttal closing argument. We also find that because Spataro was, sufficiently screened, and the defendant did not demonstrate any actual prejudice, the trial court correctly denied the defendant’s motion to disqualify the entire Monroe County State Attorney’s Office. Accordingly, we affirm the defendant’s conviction and sentence.

Affirmed.


text:
    In re Harry J. BOYER, Jr.
    No. 2009-B-1735.
    Supreme Court of Louisiana.
    July 29, 2009.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Harry J. Boyer, Jr., Louisiana Bar Roll number 17477, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

/s/ Jeannette T. Knoll Justice, Supreme Court of Louisiana


text:
    In re Michael J. HAND.
    No. 2009-B-1736.
    Supreme Court of Louisiana.
    July 31, 2009.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that Michael J. Hand, Louisiana Bar Roll number 16958, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

/s/ Benjamin Jones Justice, Supreme Court of Louisiana


text:
    In re Charles B.W. PALMER.
    No. 2009-OB-1778.
    Supreme Court of Louisiana.
    Aug. 3, 2009.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Charles B.W. Palmer, Louisiana Bar Roll number 10279, be and he hereby is transferred to disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C).

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Benjamin Jones Justice, Supreme Court of Louisiana


author: JEROME M. WINSBERG, Pro Tempore Judge.

text:
    Angela T. REMONDET v. Ira S. REMONDET. Lloyd and Evelyn LaPrairie On Behalf of Minor Children Jessica, Heather and Kayla Smith v. Angela T. Remondet Jabour.
    Nos. 08-CA-838, 08-CA-839.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.
    Robert R. Faucheux, Jr., Attorney at Law, La Place, LA, for Plaintiff/Appellant.
    Brenda B. Birner, Attorney at Law, La Place, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JEROME M. WINSBERG.
   JEROME M. WINSBERG, Pro Tempore Judge.

| gThe Defendant, Angela Remondet Jab-our, appeals a custody award of two of her children to the Plaintiffs, the maternal grandparents, Lloyd and Evelyn LaPrair-ie. We reverse.

On January 23, 2008, the Plaintiffs filed a Petition for Protection from Abuse and for custody under La.R.S. 46:2121-2143 against the Defendant on behalf of her three oldest children, Jessica, Heather, and Kayla. The Defendant answered the Plaintiffs’ petition and reconvened with a Petition for a Temporary Restraining Order against the Plaintiffs.

pThe trial was held on February 7 and 8, 2008. After the hearing, the trial judge granted custody of Heather and Jessica to the Plaintiffs, but reserved the decision as to Kayla, who was being treated in Children’s Hospital. Following a teleconfer-encé shortly after, the trial judge awarded custody of Kayla to the Defendant. The trial judge dismissed the Defendant’s petition.

On appeal, the Defendant asserts that the trial judge erred in awarding custody of Jessica and Heather to the Plaintiffs. We agree.

The petition and testimony show that the Plaintiffs sought custody of the children because the Defendant told them to take the children, but after the children went to live with the Plaintiffs, the Defendant changed her mind and wanted them returned. The Plaintiffs also believe that the Defendant is overmedicated. The Defendant admitted she takes medication for back pain and depression, and further claims she has been diagnosed with cancer. The grandmother, Evelyn LaPrairie, however, testified she also takes prescription anti-depression medications. In addition, LaPrairie testified that the older child wants to live with the Plaintiffs allegedly because the Defendant has married for the third time. The child did not testify.

The Defendant testified that she is capable of taking care of her two older girls. Notably, the trial judge awarded custody of Kayla to the Defendant.

The provisions set out in La.R.S. 46:2121-2143 are limited to instances of actual abuse. The record shows that the Plaintiffs did not make any factual ^allegations of abuse or domestic violence by the Defendant against the children. Furthermore, there is no evidence in the record of domestic abuse by the Defendant against the children. Thus, we find that those statutes do not apply.

Since the domestic violence statutes are inapplicable, and in the absence of a properly filed petition for custody under La. C.C. Art. 131, the Plaintiffs’ petition should have been dismissed. Consequently, we find that the trial judge erred in granting custody to the Plaintiffs under these circumstances, and the judgment must be reversed. The Plaintiffs are free, however, to seek custody in the future under the appropriate statutes. In that event, we note that, in addition to the factors set out in La.C.C.Art. 134, a non-parent must show that substantial harm will result to the child if the custody is not changed to a non-parent. See: La.C.C. Art. 133. In addition, since there was testimony indicating that both the Defendant and her hospitalized daughter accused the grandfather of sexual abuse in the past, those sexual abuse allegations should be addressed in any future custody proceedings.

Accordingly, the judgment of the trial court is hereby reversed.

REVERSED.

      . The Defendant had three children prior to marrying Ira Remondet, the Defendant in consolidated Appeal No. 08-CA-839. They were married in 2000, had two children, Matthew and Summer, and divorced in 2003. Remondet also filed a Petition for Protection from Abuse against the Defendant a day after the Plaintiffs. He also requested protective relief, and for custody of Matthew and Summer. That case was consolidated in the trial court with the Plaintiffs’ case. On the same day that the trial judge granted custody of Heather and Jessica to the Plaintiffs, the trial judge granted Remondet custody of Matthew and Summer. Although a motion for appeal was filed in the Remondet case, No. 08-CA-839, and consolidated with the appeal from the ruling against the Defendant in the Plaintiff's case, No. 08-CA-838, the Appellant’s brief states that she is only appealing the award of custody to the grandparents. Thus, the Remondet appeal is considered abandoned.

      . La.R.S. 46:2132(3) defines domestic abuse as follows:
      "Domestic abuse" includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another. "Domestic abuse” also includes abuse of adults as defined in R.S. 14:403.2 when committed by an adult child or adult grandchild.

      . La.C.C. Art. 131 states:
      In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.

      . This determination does not affect the other custody awards, as those were not appealed from by any party.

      .La.C.C. Art. 133 states:
      If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.