author: MAY, J. WARNER, J.,

text:
    Arthur W. ADELBERG, Appellant, v. Lisa Sheprow ADELBERG, Appellee.
    No. 4D12-2570.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2014.
    Rehearing Denied July 30, 2014.

      Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.
    Paula Revene of Paula Revene, P.A., Fort Lauderdale, for appellee.
   MAY, J.

The former husband appeals a final dissolution of marriage. He argues, among other issues, that the court erred in not imputing income to the former wife in the form of available employment opportunities and interest from investments. We agree with him in part and reverse. The former wife cross-appealed. We affirm the cross-appeal.

The former wife petitioned for dissolution of marriage. She was 59 and he was 60 years old at the time of trial. The former wife has a bachelor’s degree in history and a master’s degree in urban planning. When they met, the former wife was 41 years old and ran her own public relations/marketing consulting firm in Boston. As a result of their relationship, she closed her business and moved to Maine. It took her approximately five years to restart her business.

The former husband worked as general counsel at Central Maine Power at the time of the marriage. In 2000, he was laid off and received a significant amount of severance pay after taxes. With the severance pay, he believed that neither of them would be required to work anymore. He told the former wife that she could close her business and never have to work again. They both retired in 2000.

Upon retirement, the former husband took a year off and then started a consulting business. He was offered a two-year employment contract in 2010 with a base pay of $400,000 per year and a guaranteed bonus of $50,000. At the time of trial, the former husband was in the second year of the contract and had not yet received an extension. The court found that his current income was commensurate with his previous earnings.

The couple enjoyed a comfortable lifestyle. They bought a home on the ocean in Maine, and purchased another home in Vero Beach, Florida. They maintained both residences until the Florida home was sold during the pendency of the dissolution proceeding.

Their major liquid assets included investment and retirement accounts. The former husband testified that they were able to live on their investment income, and used his salary for special things. They had no marital liabilities.

During trial, a certified vocational evaluator testified about the former wife’s wage-earning capacity. The evaluator relied on state agency wage data, statistics on the internet, the former wife’s financial affidavit, answers to interrogatories, the mediation outline, and the former wife’s deposition transcript. Even though the former wife had not worked for eight years, the evaluator testified that the former wife could take a one-day class to learn Microsoft Office and another class to get up-to-speed with social media. The evaluator considered her employable, and identified jobs in public relations, social services, and fundraising for nonprofits and universities, which she opined could earn former wife between $40,000 and $50,000 a year.

After considering the lifestyle studies and findings of the parties’ accountants, the court found that the former husband and wife needed $13,840 and $10,300 monthly after taxes, respectively, to maintain their lifestyles. Each party received bank, securities, and retirement accounts of equal value, in addition to personal property distributed according to their agreement, and a one-half share of the sale proceeds of the Maine home. The court assumed that each party could purchase a home from their portion of sale proceeds of the Maine home. The court also estimated that the former wife would have over $835,000 in investment assets from which to receive income. The parties stipulated to a 4.5% rate of return on their assets.

As to the former wife’s employability, the court found that she lacked the skills necessary for most of the jobs identified by the vocational evaluator. As a result, based on the length of the marriage, the marital lifestyle, and other relevant factors, the court awarded the former wife permanent periodic alimony of $11,648 per month, starting July 2012. The former wife was not required to return to work. The court found that the former husband was capable of covering both of their monetary needs and would still have $3,000 left each month. The court also awarded the former wife a lump sum alimony payment.

Based on the equitable distribution and permanent periodic alimony received by the former wife, the court denied the former wife’s request for attorney’s fees and costs. The court denied the former husband’s verified motion for rehearing. From the final judgment, the former husband appeals, and the former wife cross-appeals.

The former husband argues that, not only was the former wife employable, there were jobs for which she was qualified in both Maine and Florida. The former husband contends that his promise that she would never need to work again was only good for the duration of the marriage. He further argues that the court’s finding that jobs were not realistically available to the former wife was not supported by competent, substantial evidence.

The former wife responds that the former husband failed to prove that she is employable and that jobs were available to her. She maintains that equity supported the court’s decision because she closed her business at the former husband’s request and promise that she would never have to work again.

We review imputation of income based on whether it is supported by competent, substantial evidence. Marshall-Beasley v. Beasley, 77 So.3d 751, 755 (Fla. 4th DCA 2011).

“ ‘[T]he amount of income a spouse may be able to earn is a factor the court should consider in determining an alimony award.’” Green v. Green, 126 So.3d 1112, 1114 (Fla. 4th DCA 2012) (quoting Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999)) (emphasis in original). “ ‘A court may impute income where a party is willfully earning less and the party has the capability to earn more by the use of his [or her] best efforts.’ ” Marshall-Beasley, 77 So.3d at 756 (quoting Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005)). The court should consider the wife’s work history, her occupational qualifications, and the prevailing earnings in the community for the type of jobs for which the wife is qualified. Zarycki-Weig v. Weig, 25 So.Sd 573, 575 (Fla. 4th DCA 2009).

Here, the couple had been married for seventeen years. The former wife was unemployed when the petition for dissolution was filed. To impute a specific amount of income, it is unnecessary to prove that an employer would actually hire the spouse. Middleton v. Middleton, 79 So.3d 836, 836-37 (Fla. 5th DCA 2012). Because the former wife admitted that she does not intend to look for a job, and expert testimony established that she qualified for the available jobs, her unemployment was self-imposed, and the court erred in not imputing income to her.

While the former wife might have relied on the promise she would not have to work while the couple was married, that promise cannot be the only factor considered by the court in determining an alimony award. Welch v. Welch, 951 So.2d 1017, 1019-20 (Fla. 5th DCA 2007).

The former husband also argues that the court erred in not imputing income generated from the estimated sale proceeds of the Maine home, funds in IRA retirement accounts, and other non-marital assets. The former wife responds that income cannot be imputed on the Maine home because it was not income-producing. She also argues that the court correctly did not consider her IRA account because the former husband’s IRA accounts were not included as income-producing assets to him.

We review a court’s determination of whether certain assets should be available sources of income for an abuse of discretion. See Niederman v. Niederman, 60 So.3d 544, 546 (Fla. 4th DCA 2011).

It is sometimes difficult to discern whether income from the sale of a former marital home produces an income-generating asset to the spouse. See, e.g., Levine v. Levine, 29 So.3d 464, 465 (Fla. 4th DCA 2010) (May, J., concurring). When one spouse is assigned an asset and plans to use the proceeds to purchase a home, the issue becomes even more blurred. See Suit v. Suit, 48 So.3d 195, 197 (Fla. 2d DCA 2010).

In Suit, the former wife was awarded liquid assets and planned to use a significant portion of them to purchase a home. Id. The Second District recognized the blurred lines of this issue and remanded the case to the court to consider additional evidence and make specific findings regarding the former wife’s intent to purchase a home and the effect it would have on her investment assets. Id.

Here, the former wife had possession of the Maine home until sold. The court awarded each spouse one-half of the sale proceeds to purchase their respective new homes. Even though the former wife had not purchased a home, she claimed homeowners’ association fees as part of her living expenses.

While the home is occupied by the former wife, it is appropriate not to impute income. See Levine, 29 So.3d at 464-65. However, on remand, if the Maine home has been sold, the court should consider whether the former wife purchased a home with the sale proceeds. If she did, the court should consider whether there are funds from the sale that were not used to purchase the new home, which can now be considered investment assets so that the alimony amount reflects the potential interest income of the former wife. The court should also consider whether the former wife is still required to pay homeowners’ association fees. Suit, 48 So.3d at 197.

In considering an alimony award, a court must consider “all sources of income available to either party.” § 61.08(2)(i), Fla. Stat. (2011). “‘Income’ means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, ... annuity and retirement benefits, pensions, dividends, [and] interest.” § 61.046(8), Fla. Stat. (2011). This includes payments received from IRA retirement accounts. Niederman, 60 So.3d at 548.

In Niederman, we held that the court did not err in including the IRA funds of a former wife, who was in her mid-fífties, as a source of income. Id. at 546. Here, the former wife turned 59 before the trial. By the time the court entered its final judgment, she was just two days shy of 59½ years old and would not have suffered any tax penalty from withdrawing funds from her IRA retirement accounts when the court-ordered alimony payments began in July 2012. Id. at 547. The retirement funds at a stipulated rate of return of 4.5% will generate income for the former wife’s support. This should have been included in the court’s calculation of the former wife’s need for alimony.

Similarly, if the former wife’s non-marital bank account is interest-generating, it falls within the definition of income under section 61.046(8), and should be included in the calculation of the former wife’s income. She may not increase her alimony by shielding the interest accrued in the non-marital bank account from her income calculation. Mallard v. Mallard, 771 So.2d 1138, 1141 (Fla.2000). Correspondingly, the court should also include any of the former husband’s non-marital portions of his IRA accounts and non-marital bank accounts in calculating his total income. Niederman, 60 So.3d at 550.

For these reasons, we reverse and remand this case for recalculation of the alimony. We find no merit in the other issues raised by the former husband nor by the former wife in her cross-appeal.

Reversed and Remanded.

LEVINE, J., concurs.

WARNER, J., concurs in part and dissents in part with opinion.

WARNER, J.,

concurring in part and dissenting in part.

While I concur in the majority opinion on the issues addressed, I would also have reversed the trial court’s denial of the former husband’s Motion for Reconsideration pursuant to Florida Family Law Rule of Procedure 12.530, which incorporates Florida Rule of Civil Procedure 1.530. In his motion, the former husband sought to reopen the testimony to consider newly discovered evidence, namely, the fact that since the conclusion of the final hearing, his contract for employment had been renewed at half of his previous salary. Although the trial was held in December, the former husband moved for reconsideration in the beginning of February, and the trial court had not yet entered a final judgment. The court denied the motion, suggesting that the former husband file a supplemental petition for modification after the final judgment was entered. The court entered the final judgment nearly three months later, imputing to the husband his former salary.

Rule 1.530(a) allows a court, in non-jury matters, to “open the judgment if one has been entered, take additional testimony, and enter a new judgment.” Although discretionary, where the party has been diligent in presenting the newly discovered evidence to the court, and it bears on a material issue in the case, a court abuses its discretion in not hearing such evidence. See Blue v. Blue, 66 So.2d 228, 230 (Fla. 1958) (trial court abused its discretion in denying wife’s motion for reconsideration of newly discovered evidence, namely the adultery of the husband, as the issue of custody of the child was an issue upon which such evidence may be material). In this case, the former husband’s earning capacity was central to the determination of alimony, the main dispute in this case. He had testified at the final hearing that he had not been offered another contract as of the date of the final hearing, and he moved expeditiously for the trial court to consider the newly discovered evidence, which was produced well in advance of the final judgment and clearly could not have been produced at the final hearing. On these facts, as well as the example provided by Blue, I conclude that the trial court abused its discretion in denying the motion. .

      . Before the court issued the final judgment, the former husband filed an amended motion for reconsideration based on newly discovered evidence. He alleged a change in his monthly income to a base salary of $20,000 per month in 2012 with the possibility of a performance bonus. The court denied the motion, but advised the former husband to file a supplemental petition for modification, if necessary, upon the entry of the final judgment.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Adam CARRASCO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1671.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2014.
    Rehearing En Banc Denied July 30, 2014.
    Adam Carrasco, Cross City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant challenges the denial of a petition for habeas corpus filed with the trial court. We affirm the lower court’s ruling based on the reasons discussed below.

Defendant filed a timely rule 3.850 motion with four claims, which was summarily denied on October 9, 2006. Thereafter, he filed a motion for rehearing which was apparently lost or misplaced by prison officials and not received by the trial court until 2009. Notwithstanding the possible untimeliness, the trial court considered the motion for rehearing on the merits and denied it. Defendant appealed the denial of the rule 3.850 motion, and we per cu-riam affirmed. See Carrasco v. State, 35 So.3d 36 (Fla. 4th DCA 2010).

In August of 2010, defendant filed the instant habeas petition with the trial court. In it, he alleged that the trial court failed to address five additional claims which he raised in a supplement to his original rule 3.850 motion. Defendant claimed that the supplement had been timely filed prior to the trial court’s order denying the motion for postconviction relief, but allegedly misplaced or lost by prison officials. He argued that the court was required to consider the additional claims since they were timely under the “mailbox rule.”

We disagree with defendant’s position. Defendant was aware that the trial court’s final order, entered in 2006, did not address the supplemental claims. Nevertheless, he made no mention of any additional claims in his 2006 motion for rehearing. Moreover, defendant failed to mention the supplemental claims in the initial brief on his appeal or even in the motion for rehearing from our affirmance. Instead, defendant waited until four years after the original motion was denied before notifying the court about the existence of the supplemental claims. Consequently, we find that defendant abandoned the supplemental issues by failing to include them in his motion for rehearing or in any of the subsequent motions filed related to his rule 3.850 motion. See Doorbal v. State, 983 So.2d 464, 482-83 (Fla.2008) (noting that claims for which an appellant has not presented any argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived); see also Baker v. State, 878 So.2d 1236, 1241 (Fla.2004) (explaining that a habeas cannot be used as a means to seek a second appeal or to litigate issues which could have been raised in a rule 3.850 motion).

Affirmed.

WARNER, GERBER and CONNER, JJ., concur.


text:
    Javier JIMENEZ-JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2121.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Rehearing Denied July 30, 2014.
    Javier Jimenez-Jimenez, Florida City, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Javier Jimenez-Jimenez appeals an order that denied his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, and imposes sanctions based on State v. Spencer, 751 So.2d 47 (Fla.1999). We affirm the trial court’s denial of the rule 3.850 motion, but we reverse the sanction order. However, as in Wilson v. State, 57 So.3d 1000 (Fla. 4th DCA 2011), we caution appellant that he may face the same prohibition again should he abuse the process by filing repetitious and frivolous pleadings and papers.

Affirmed in part, reversed in part, and remanded.

MAY, LEVINE and CONNER, JJ., concur.


author: WARNER, J.

text:
    Marcia Priscilla RODRIGUES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2287.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges her conviction for first degree murder on two grounds. First, she claims that the court erred in admitting prejudicial evidence about her social life and dating history, as well as her son’s opinions as to her mental state. She argues expert witnesses were improperly used as “conduits” for this inadmissible evidence. Second, she objects that the court refused to allow juror interviews or a re-polling of the jury after a juror expressed concern that the jury did not understand the jury instructions. Neither issue has merit.

As to the first issue, the appellant presented an insanity defense, and both the state and defense presented experts on the issue. Both sides’ experts discussed whether appellant’s son believed she was, essentially, faking insanity. In a deposition given by the son and reviewed by the experts, the son wavered as to whether he believed his mother’s mental illness was genuine. Much of the testimony by the experts to which appellant objects on appeal was not preserved by a contemporaneous objection at trial. Although the parties discussed the inadmissibility of the son’s opinion of his mother’s mental state, the court did not make a definitive ruling on the issue. The court commented that it seemed that if it were the son’s opinion, it would not be admissible, but it made no definitive ruling. “If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” § 90.104(l)(b), Fla. Stat. (2007) (emphasis added). Here, during the proffer, appellant failed to obtain such ruling on this issue. See USAA Cas. Ins. Co. v. Allen, 17 So.3d 1270,1272 (Fla. 4th DCA 2009). The trial court did not rule on the specific comments elicited, and appellant failed to object to them. Thus, her failure to contemporaneously object to this testimony by the state’s expert means the issue is not preserved for appeal.

The first time this issue was raised was by the state. Before trial the prosecutor volunteered that she would not elicit the son’s opinion as to appellant’s mental state when the son testified at trial. The court commented, “[I]t seems to me if it’s [the son’s] opinion ... I mean, clearly that would be inadmissible.”

Later, when the state proffered certain testimony by its expert, appellant argued that the son’s opinion as to whether the crime was premeditated, as opposed to the result of mental illness, was inadmissible. When the court noted it was “sensitive” to this concern, the state agreed not to elicit such testimony. This is not a definitive ruling by the court. When the state’s expert did nevertheless testify that appellant’s son questioned the validity of her symptoms, appellant did not object.

Testimony about the son’s opinion was also elicited from appellant’s expert during cross-examination by the state. During a proffer of the cross-examination, appellant objected that the son’s opinion as to his mother’s mental illness was inadmissible and that the cross-examination was being used as a conduit to introduce this otherwise inadmissible evidence. The court ruled the son’s opinion as to the validity of his mother’s mental illness was not admissible, but allowed the state to ask appellant’s expert about specific statements appellant made to her son, which tended to show the killing was premeditated.

Subsequently, on cross-examination before the jury, appellant’s expert began to discuss the son’s opinion. Appellant at one point objected, without stating a specific basis. During sidebar, the state and court commented that appellant’s expert was volunteering the son’s opinion, even though the state was not directly eliciting it. Appellant appeared to agree, commenting that “everything is intertwined” and that the doctor was attempting to give context to appellant’s statements. Appellant thereafter did not object as her expert continued to discuss the son’s opinion through the remainder of cross-examination. Again, we cannot conclude that the trial court made a definitive ruling excluding the comments.

Even if appellant had sufficiently preserved this issue, we find no reversible error in the admission of this testimony. Although an expert should not be used as a conduit for inadmissible evidence, this prohibition is inapplicable when otherwise inadmissible evidence of the facts and data supporting the expert’s opinion is brought out in cross-examination. Hayes v. Wal-Mart Stores, Inc., 933 So.2d 124, 127 (Fla. 4th DCA 2006); see also § 90.705(1), Fla. Stat. (2007) (“On cross-examination the expert shall be required to specify the facts or data” on which he or she relied.). Moreover, there may have been strategic reasons for the lack of objection. Appellant’s expert testified at length regarding the son’s deposition and used it to elucidate his own opinion regarding appellant’s sanity. Overall, we cannot say the trial court abused its discretion in admitting this testimony.

With respect to the state’s expert’s testimony about appellant’s social life and dating history, appellant opened the door to this evidence on cross-examination. Appellant also failed to object to the state eliciting testimony on this topic from appellant’s expert on cross-examination. Even if this issue was preserved, the trial court did not abuse its discretion in allowing such testimony, because it is appropriate to inquire into the factual basis of an expert’s opinion on cross-examination. See Hayes, 933 So.2d at 127.

On the second issue, the jury was polled at appellant’s request prior to the recording of the verdict. After their discharge, and based upon a voluntary conversation with some of the jurors, appellant filed a motion to re-poll the jury. The court properly denied the request. See Fla. R. Crim. P. 3.450 (“[N]o motion to poll the jury shall be entertained after the jury is discharged or the verdict recorded.”); Simpson v. State, 3 So.3d 1135, 1142-43 (Fla.2009). Further, the trial court did not err in denying a motion to interview the jurors, because the matters upon which an interview was sought, namely the jurors’ understanding of the jury instructions and verdict form, inhered in the jury verdict. See Johnson v. State, 593 So.2d 206, 210 (Fla.1992) (questions about “the jury’s understanding of the court’s instructions” were improper because they concerned matters inhering in the verdict); see also Simpson, 3 So.3d at 1144 (claim that jurors misunderstood jury instructions is clearly a matter that inheres in jury verdict).

The conviction and sentence are affirmed.

DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.


text:
    Jacobrian BRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1168.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.

      Jacobrian Bray, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

The defendant appeals the trial court’s denial of a motion to correct illegal sentence, pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure. The motion raised the same sentencing challenge as did his prior motions for post-conviction relief. The issues are therefore barred by collateral estoppel. We affirm and caution the defendant that the filing of further frivolous appeals will result in sanctions.

In this rule 3.800(a) motion, the defendant challenged a ten-year mandatory minimum sentence imposed for actual possession of a firearm in count one, and the three-year mandatory minimum for actual possession of a firearm in count four. He argued that even though he pled guilty to the charges, the trial court was required to make a specific finding of actual possession to impose the mandatory minimum term under section 775.087(1), Florida Statutes (2006). The defendant’s argument is mer-itless. His guilty pleas to the counts charging actual possession of a firearm mandated imposition of the mandatory minimum terms. See State v. Moore, 854 So.2d 832 (Fla. 5th DCA 2003).

The defendant is also procedurally barred from raising this challenge because he raised the same or similar challenges in Bray v. State, 995 So.2d 976 (Fla. 4th DCA 2008), and Bray v. State, 68 So.3d 247 (Fla. 4th DCA 2011). See State v. McBride, 848 So.2d 287 (Fla.2003); Kittles v. State, 83 So.3d 958 (Fla. 4th DCA 2012).

The defendant’s motion is procedurally barred, an abuse of the post-conviction procedure, and meritless. We therefore find this appeal frivolous, and caution the defendant that any future frivolous filing in this court will result in referral to prison officials for consideration of disciplinary procedures, which may include forfeiture of gain-time. §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2012). The defendant is also cautioned that future frivolous filings may result in sanctions by this court, including a prohibition against pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed.

MAY, CONNER and FORST, JJ„ concur.


text:
    Robert GORHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-823.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Robert Gorham, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order dismissing the habeas corpus petition filed by appellant. Appellant included a challenge to the information, which overlaps with and is similar to a claim of ineffective assistance of trial counsel raised in his earlier motion for postconviction relief, the denial of which this court affirmed in Gorham v. State, 126 So.3d 1066 (Fla. 4th DCA 2013). Appellant is therefore cautioned against the filing of frivolous post-conviction challenges or appeal filings in this case, which will result in sanctions including referral to prison officials for disciplinary proceedings and/or a prohibition against pro se filings in this court. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

Affirmed; appellant cautioned against frivolous filings.

STEVENSON, LEVINE and FORST, JJ., concur.

      . Because the circuit court construed the petition pursuant to rule 3.850(m), we treat this appeal as a rule 3.850 summary denial,


text:
    Robert Lee DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1410.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Robert Lee Davis, Fort Pierce, pro se. No appearance required for appellee.
   PER CURIAM.

Affirmed. Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013).

WARNER, TAYLOR and MAY, JJ., concur.


text:
    Eric BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-264.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Lopez v. State, 135 So.3d 539 (Fla. 2d DCA 2014).

STEVENSON, TAYLOR and CONNER, JJ., concur.


author: GROSS, J.

text:
    R.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-635.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The State is not required to prove a juvenile’s age to vest subject matter jurisdiction in the juvenile division of the circuit court.

After a trial, appellant was adjudicated delinquent for aggravated assault with a deadly weapon. There was ample evidence of the offense. During the trial, the State elicited testimony from the arresting officer that appellant said his birthday was February 13, 1996, making him sixteen years old at the time of the crime. The officer made no other attempt to confirm appellant’s age.

Following up on an objection made in the circuit court, appellant argues on appeal that the trial court erred in denying his motion for judgment of dismissal since the State failed to establish he was under eighteen at the time of the offense, leaving the circuit court without jurisdiction. We disagree.

The circuit court has subject matter jurisdiction over felony charges and misdemeanor and felony charges committed by juveniles. Article V, section 5(b) of the Florida Constitution imbues circuit courts with original jurisdiction over all cases “not vested in the county courts.” Circuit courts thus function as “tribunals of plenary jurisdiction,” Dep’t of Revenue v. Kuhnlein, 646 So.2d 717, 720 (Fla.1994), such that “nothing is intended to be outside their jurisdiction except that which clearly and specially appears so to be.” Dep’t of Children & Families v. J.J.E., 901 So.2d 215, 216 (Fla. 5th DCA 2005) (citing English v. McCrary, 348 So.2d 293, 297 (Fla.1977)).

In the criminal context, this means circuit courts may hear all cases except adult misdemeanor offenses. See § 34.01(l)(a), Fla. Stat. (2012) (providing county courts with original jurisdiction “[i]n all misdemeanor cases not cognizable by the circuit courts”). Section 985.0301(1), Florida Statutes (2012), states that “[t]he circuit court has exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.” Jurisdiction of juvenile proceedings thus “is not limited by the nature of the act, as the court may deal with misdemeanors or felonies. Instead, its jurisdiction is limited by the age of the participant.” Cesaire v. State, 811 So.2d 816, 817 (Fla. 4th DCA 2002).

To avoid pandemonium, Florida’s circuit courts are “divided into divisions, with each division handling certain types of cases.” In re Guardianship of Bentley, 342 So.2d 1045, 1046-47 (Fla. 4th DCA 1977). This fractioning, however, is strictly for efficiency purposes and has no effect on a circuit court’s subject matter jurisdiction. As we have explained, “[a]ll circuit court judges have the same jurisdiction within their respective circuits.... The internal operation of the court system and the assignment of judges to various divisions does not limit a particular judge’s jurisdiction.” In the Interest of Peterson, 364 So.2d 98, 99 (Fla. 4th DCA 1978).

Juvenile courts are one such “division” of the circuit court. Upon this backdrop, whether a “child” falls within the “age” requirements of a juvenile court is not a matter of subject matter jurisdiction, but one of “divisional” jurisdiction— i.e., whether the juvenile is in the correct circuit court “division.” Williams v. State, 737 So.2d 1141, 1142 & n. 1 (Fla. 4th DCA 1999); Partridge v. Partridge, 790 So.2d 1280, 1284 (Fla. 4th DCA 2001). If a juvenile is charged with committing a misdemeanor or a felony then the circuit court has subject matter jurisdiction over the case. For example, where a juvenile’s case has been assigned to criminal court, but the juvenile does not object, any mistake in the assignment is waived. See State v. Griffith, 675 So.2d 911, 913 (Fla. 1996) (“While the age of the defendant when the offense was committed rather than when the charges are filed controls whether the charges should be filed in juvenile court or criminal court, Griffith’s convictions must stand because he failed to object to being tried in adult court.”); State v. King, 426 So.2d 12, 14 (Fla.1982) (“[A] juvenile charged with an offense not punishable by death or life imprisonment has a right not to be charged by an indictment. However, this right, as with all other rights, may be waived if not asserted in a timely and proper fashion.”). Here, appellant was charged with a felony so the circuit court was the right place for him.

Matters of juvenile “divisional” jurisdiction within the circuit court do not need to be proven at trial. In this case, the petition for delinquency alleged appellant was under eighteen years old at the time he committed the offense. If appellant disputed this fact, it was incumbent upon him to have the case transferred to criminal court. The situation is distinguishable from the requirement that the State establish “venue,” since criminal defendants have a constitutional right to “be tried in the county where the crime took place.” State v. Stephens, 608 So.2d 905, 906 (Fla. 5th DCA 1992) (citing Art. I, § 16, Fla. Const.); see, e.g., State v. Crider, 625 So.2d 957, 959 (Fla. 5th DCA 1993) (“[I]n order for Crider to have been properly tried in the correct venue, the record must support the jury’s conclusion that Crider dealt in stolen property in Volusia County.”).

Affirmed.

      . We note that the juvenile's admission of his birthdate was competent proof of his age.


author: BERGER, J.

text:
    GERBER and FORST, JJ., concur.

      DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Nils FUTCH, Respondent.
    No. 5D13-3457.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2014.
    Rehearing Denied July 22, 2014.

      Stephen D. Hurm, General Counsel, and Kimberly Gibbs, Assistant General Counsel, of Department of Highway Safety and Motor Vehicles, Orlando, for Petitioner.
    Eric A. Latinsky, of Damore, Delgado, Romanik & Rawlins, Daytona Beach, for Respondent.
   BERGER, J.

The Department of Highway Safety and Motor Vehicles (DHSMV) seeks second tier certiorari review of a circuit court order granting Respondent, Nils Futch’s petition for writ of certiorari and quashing DHSMVs administrative order affirming the suspension of Futch’s driver’s license. DHSMV argues that the circuit court departed from the essential requirements of law when it ordered the department to reinstate Futch’s license rather than remand the matter to the hearing officer for further proceedings. We agree and grant the petition.

In March 2013, Futch was arrested for driving under the influence (DUI). He refused to submit to a breath alcohol test. Pursuant to section 322.2615(1), Florida Statutes (2013), DHSMV placed an administrative refusal suspension on Futch’s driver’s license. Futch requested a formal administrative suspension review hearing under section 322.2615(6), Florida Statutes (2013). At the hearing, DHSMV submitted the required documents pursuant to section 322.2615(2), Florida Statutes (2013). Futch did not testify at the hearing. Instead, he called as an expert witness, Andy Cospito, at which time the following exchange took place:

MR. LATINSKY: Okay. At this time, I would call Andrew Cospito and have him to testify.
THE COURT: Please raise your right hand.
WHEREUPON, ANDREW N. COSPI-TO, having first been duly sworn, was called as a witness and testified as follows:
MR. COSPITO: Yes, ma’am, I do. HEARING OFFICER: Thank you. Please restate your name for record. MR. COSPITO: Andrew N. Cospito, CO-S-P-I-T-O.
HEARING OFFICER: Okay. And— MR. LATINSKY: Thank you. HEARING OFFICER: Now, wait á minute now. I’ve got to finish my questions first.
MR. LATINSKY: No, actually in a hearing, I ask my questions first. The hearing officer doesn’t question my witness before I do.
HEARING OFFICER: I wasn’t finished asking him a couple questions before you get to ask him.
MR. LATINSKY: I respectfully object. HEARING OFFICER: And that’s been noted for record. Mr. Cospito, are you a current law enforcement officer?
MR. COSPITO: No.
HEARING OFFICER: And were you at the scene on March 15th, 2013—
MR. COSPITO: Nope.
HEARING OFFICER: — when Mr.
Futch got stopped?
MR. COSPITO: No, ma’am.
HEARING OFFICER: And do you hold a valid breath test operator permit as a current law enforcement officer?
MR. COSPITO: No, I do not.
HEARING OFFICER: Okay. Counsel, at this time, this hearing officer does not recognize Mr. Cospito as an expert witness in this hearing. But I will allow you to ask two questions for proffer. And only two questions. And then we’ll go forward with any other motions you would have for record.
MR. LATINSKY: Okay. There’s an old saying, when a person asks if they can ask a question for you, which is, if you’re going to try my case for me, please don’t lose it for me. Unfortunately, you haven’t asked the correct questions to set a predicate for my client to be admitted as an expert witness. Florida Statute indicates he has to have training and experience. We’ve been through this before. I am aware that the Department has a bias and illegal policy not allowing me to call my witness. I realize this has come up before. However, Mr. Futch is a new arriver to this hearing and is entitled to due process. At this time, I’m going to point out that I need to ask more questions. I will start asking and I will try to be as polite as I can, if interrupted.
HEARING OFFICER: Two questions. I will allow two questions for proffer. Because, like I just told you, that this hearing officer does not recognize Mr. Cospito as an expert witness.
MR. LATINSKY: Yes.
DIRECT EXAMINATION BY MR. LATINSKY:
Q Mr. Cospito, have you had training and experience as a DRE?
A Yes.
Q Would you explain to us for the record the experience and what that means?
A First of all, being a law enforcement officer in charge of a DUI unit, made well over 1,000 DUI arrests, I became a DUI instructor, certified through the Department of Highway Safety and Traffic Administration, as it pertains to proper administration of field sobriety exercises, specifically trained in the proper administration of the horizontal gaze nystagmus exercise as performed on impaired drivers. Once I achieved these certificates and the amount of arrests, I attended the drug recognition expert training and certification while as a law enforcement officer. And instructed officers how to properly administrate field sobriety exercises, and then going into DRE training as it pertains to impaired drivers by alcohol or narcotics.
Q Okay. And have you had further training—
HEARING OFFICER: Counsel, that was your two questions.
MR. LATINSKY: Okay.
HEARING OFFICER: You asked him if he was a DRE and then you asked him his training, so...
MR. LATINSKY: Okay. I just want to be clear that I’m not allowed to ask any more questions.
HEARING OFFICER: That’s correct.
MR. LATINSKY: Okay.

At the close of the evidence, the hearing officer affirmed Futch’s suspension after concluding that the law enforcement officer had probable cause to believe Futch was driving, or in actual physical control, of a motor vehicle while under the influence of alcohol or drugs, and that Futch had refused to submit to testing after having been requested to do so, and after having been informed of the consequences of refusing to submit to the test. Thereafter, Futch sought certiorari review in the circuit court.

A hearing officer’s decision to sustain a suspension of a person’s driver’s license is reviewable in a petition for writ of certiorari in the circuit court. See § 322.2615(13), Fla. Stat. (2013). Likewise, a law enforcement agency may seek certiorari review of the hearing officer’s decision to invalidate a suspension. Id. “[F]irst-tier certiorari review is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal _” Broward Cnty. v. G.B.V. Inti, Ltd., 787 So.2d 838, 843 (Fla.2001). The circuit court considers:

whether procedural due process is accorded, [2] whether the essential requirements of the law have been observed, and [3] whether the administrative findings and judgment are supported by competent substantial evidence.

Id.

“Procedural due process has been afforded to a driver at a formal administrative review hearing where the driver has received notice and has been given an opportunity to be heard.” Dep’t of Highway Safety & Motor Vehicles v. Corcoran, 133 So.3d 616, 620 (Fla. 5th DCA 2014). “The procedural due process rights afforded a driver when seeking review of a license suspension pursuant to section 322.2615 include ‘the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.’ ” Lee v. Dep’t of Highway Safety & Motor Vehicles, 4 So.3d 754, 756-57 (Fla. 1st DCA 2009) (quoting Fla. Admin. Code R. 15A-6.013(5)).

On certiorari review in this case, the trial court determined that the hearing officer violated Futch’s due process rights by refusing to allow his expert witness to testify at the hearing. However, instead of remanding the case back to the hearing officer for a new administrative hearing, the trial court quashed the hearing officer’s order affirming the suspension and directed DHSMV to set aside the suspension and reinstate Futch’s license. DHSMV argues this was error.

Our review of the circuit court’s order is limited to whether the circuit court afforded procedural due process and applied the correct law. See G.B.V. Int’l, Ltd., 787 So.2d at 843; see also Corcoran, 133 So.3d at 620 (quoting Dep’t of Highway Safety & Motor Vehicles v. Luttrell, 983 So.2d 1215, 1217 (Fla. 5th DCA 2008)). “[S]econd-tier certiorari review is more restricted and is similar in scope to true common law certiorari.” G.B.V. Int’l, Ltd., 787 So.2d at 843.

We first consider whether the trial court afforded DHSMV procedural due process. The record below indicates that the circuit court ordered DHSMV to show cause why Futch’s petition should not be granted, and held a hearing on DHSMV’s motion to dismiss. The parties also received notice and an opportunity to be heard before the circuit court ruled on the motions and petition. Therefore, we conclude that the circuit court afforded the parties procedural due process. See Dep’t of Transp. v. Baird, 992 So.2d 378, 381 (Fla. 5th DCA 2008) (“The basic requirements of procedural due process are notice and an opportunity to be heard.”). We now turn to the issue of whether the trial court applied the correct law.

DHSMV asserts that the circuit court improperly conducted a de novo review and usurped the hearing officer’s lawful authority as finder-of-fact on the issue of the relevance of the witness. The problem with this argument is two-fold. First, the hearing officer did not find that the testimony of witness Cospito was irrelevant; rather, the hearing officer concluded that the witness was not an expert, and, thereafter, limited counsel’s questions. Second, the circuit court was concerned with the way the hearing was conducted, and took issue in its order with the arbitrary manner in which the hearing officer limited Futch to two questions, not with the hearing officer’s conclusion that the witness was not an expert. Specifically, the court concluded:

Suspension has been in place for six (6) months measured to the date of this decision. If remanded to the Hearing Officer for rehearing the matter would then be reheard and if a Petition for Certiorari was necessary, nearly a full year would have been expended. Unfortunately, a stay pending appeal is currently not available. Anderson v. Department of Highway Safety .and Motor Vehicles, 751 So.2d 749 (Fla. 5th DCA 2000). [T]his court feels that the equities in this situation gravitate in favor of the Petitioner having the benefit of a prompt, fair, and meaningful procedure. To have such a substantial departure by a Hearing Officer in regard to the due process component of this appeal vitiates that prompt, fair, and meaningful procedure which is this court’s constitutional responsibility.
The Hearing Officer, in what can only be analyzed as a remarkable event, allowed Mr. Latinsky, Mr. Futch’s attorney, two questions. In essence, the Hearing Officer allowed the witness to testify but did not let the proponent of the witness ask enough questions to either present evidence or create a reasonable proffer. The concept of due process, at is [sic] rudimentary level, requires notice and an opportunity to be heard. In this case the Constitution was turned on its head in violation of the Fourth and Fourteenth Amendments. As a result this court finds that there is no question that the Petitioner, Nils Futch, has not been accorded procedural due process and therefore the decision of the Hearing Officer cannot stand.

While the hearing officer may well have heard Cospito’s testimony only to later conclude that the testimony was irrelevant, the fact that the hearing officer never gave counsel an opportunity to examine the witness beyond the two questions, or to allow Futch to make a proffer, is problematic. “Although the hearing officer has the discretion to control the orderly process of the administrative hearing, when that discretion is abused and results in a denial of procedural due process, the circuit court may grant relief.” Dep’t of Highway Safety & Motor Vehicles v. Pitts, 815 So.2d 738, 744 (Fla. 1st DCA 2002). Accordingly, we find no error in the circuit court’s determination that Futch was denied due process. The error lies with the remedy fashioned by the circuit court.

In this case, the circuit court reasoned that by the time Futch’s case is reviewed in a petition for writ of certiorari, remanded for a new hearing, and then review is again sought, his suspension will be completed. Thus, the circuit court concluded that the equities gravitated in favor of invalidating the suspension. The problem with the circuit court’s reasoning is that it disregards this court’s precedent requiring that the matter be remanded for further proceedings. Indeed, we have consistently held that when a circuit court quashes a hearing officer’s order on due process grounds, the matter is to be remanded to the hearing officer for further proceedings. See Corcoran, 133 So.3d at 623 (“If the hearing officer erred, the error should simply have been corrected and the matter remanded for a new hearing.”); Dep’t of Highway Safety & Motor Vehicles v. Icaza, 37 So.3d 309, 312 (Fla. 5th DCA 2010) (“We conclude that the circuit court applied the wrong law when it refused to remand the case to the hearing officer.”); Tynan v. Dep’t of Highway Safety & Motor Vehicles, 909 So.2d 991, 995 (Fla. 5th DCA 2005) (“[H]aving failed to accord Tynan due process in the first hearing, the Department had the right to conduct a hearing which met due process requirements.”); Lillyman v. Dep’t of Highway Safety & Motor Vehicles, 645 So.2d 113, 114 (Fla. 5th DCA 1994) (“When an evi-dentiary error is made in an administrative hearing, the remedy is to remand for further proceedings.”); see also Dodson v. Dep’t of Highway Safety & Motor Vehicles, 120 So.3d 69, 70 (Fla. 1st DCA 2013) (“We remand this case to the circuit court whereupon by either party’s filing of a proper motion, the case shall be remanded to the Department for a new hearing that meets the essential requirements of the law.”); Dep’t of Highway Safety & Motor Vehicles v. Chamizo, 753 So.2d 749, 752 (Fla. 3d DCA 2000) (“Where the hearing officer makes a harmful trial error, the remedy is to send the matter back for a new hearing.”). It is not the responsibility of the circuit court to invalidate the license suspension.

Because we conclude that the circuit court misapplied the law when it directed DHSMV to set aside the suspension and reinstate Futeh’s driver’s license, we grant the petition for writ of certiorari, quash the order of the circuit court, and remand for further proceedings consistent with this opinion.

PETITION GRANTED.

SAWAYA and COHEN, JJ., concur.

      . Futch’s petition for writ of certiorari also alleged that there was a lack of substantial competent evidence to establish that he was lawfully stopped. The circuit court determined that this argument lacked merit.

      . The trial court reasoned:

      .Although we agree that Futch was not afforded procedural due process, we by no means approve of the manner in which Mr. Latinsky addressed the hearing officer.

      . The circuit court’s reliance on Fuller v. Department of Highway Safety & Motor Vehicles, (Fla. 7th Cir.Ct.2012), on the basis that this court denied second tier certiorari review in that case is misplaced. A denial without an opinion has no precedential value. Dep’t of Highway Safety & Motor Vehicles v. Auster, 52 So.3d 802, 803 (Fla. 5th DCA 2010).


text:
    Larry CLAYCOMB, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1834.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Appellant, Larry Claycomb, appeals his convictions for burglary of a dwelling (Count I) and two counts of attempted robbery (Counts II and III). He argues that the trial court should have suppressed his statements to law enforcement and that the trial court erred in imposing a consecutive prison releasee reoffender (“PRR”) sentence on Count III. We affirm without comment the trial court’s denial of appellant’s motion to suppress. We also affirm as to the sentencing issue, but write to explain why one of this court’s prior decisions on the issue is no longer good law.

The relevant facts are as follows. After the jury returned its verdict, the trial court sentenced appellant to a term of thirty years in prison on Count I as a habitual felony offender and as a PRR, a concurrent term of thirty years in prison on Count II as a habitual felony offender and as a PRR, and a consecutive term of ten years in prison on Count III as a PRR. Appellant filed a rule 3.800(b)(2) motion to correct sentence, arguing that his consecutive PRR sentence for Count III was illegal. The trial court did not rule on the motion within sixty days, so it was deemed denied. Fla. R. Crim. P. 3.800(b)(1)(B). This appeal ensued.

An appellate court applies a de novo standard of review to a claim that the trial court imposed an illegal sentence. State v. Valera, 75 So.3d 330, 331-32 (Fla. 4th DCA 2011).

In Philmore v. State, 760 So.2d 239 (Fla. 4th DCA 2000), this court held that PRR sentences may not be imposed consecutively for offenses arising out of the same criminal episode. In reaching this conclusion, we relied upon Hale v. State, 630 So.2d 521 (Fla.1993), which held that once a defendant’s sentences for multiple crimes committed during a single criminal episode were enhanced through habitual felony offender statutes, the total penalty could not be further increased by ordering that the sentences run consecutively.

In Reeves v. State, 957 So.2d 625, 626 (Fla.2007), however, the Florida Supreme Court held that “a PRR sentence followed consecutively by a CPC sentence not otherwise enhanced beyond the statutory maximum is a legal sentence, even if the crimes arose from a single criminal episode.” Explaining that section 775.082(9), Florida Statutes, dictates a “minimum sentence or sentencing floor” rather than a statutory maximum sentence, our supreme court clarified that Hale has “little bearing on the interpretation of the PRR statute.” Id. at 630, 633.

The Fifth District, relying on the Reeves court’s conclusion that Hale has “little bearing” on the interpretation of the PRR statute, held that consecutive PRR sentences may be imposed. See Young v. State, 37 So.3d 389 (Fla. 5th DCA 2010). The Fifth District explained:

Given the holding in Reeves and the stated intent of the PRR statute to punish eligible offenders to the fullest extent of the law, the court can find no reasonable interpretation of the PRR statute that would prohibit consecutive PRR sentences but permit the imposition of consecutive PRR and criminal punishment code sentences as approved in Reeves.

Id. at 391.

Notwithstanding Reeves and Young, the First District has continued to adhere to the rule that “PRR sentences may not be ordered to run consecutively when the crimes were committed during a single criminal episode.” Mosley v. State, 112 So.3d 538, 539 (Fla. 1st DCA 2013). The Florida Supreme Court has granted review of the Mosley decision. See State v. Mosley, No. SC13-704, 2014 WL 305705 (Fla. Jan. 14, 2014).

Recently, the Florida Supreme Court held that a trial court may impose a habitual offender sentence consecutive to a PRR sentence. See Cotto v. State, 139 So.3d 283, 290 (Fla.2014) (“Based on the foregoing, we hold that Hale does not prohibit a habitual offender sentence from being imposed consecutively to a PRR sentence.”).

In light of the Florida Supreme Court’s more recent case law addressing the PRR statute, it is clear that a PRR sentence may be imposed consecutive to a habitual offender sentence or a CPC sentence. It follows logically that a PRR sentence may be imposed consecutive to another PRR sentence. Since our decision in Philmore, the Florida Supreme Court has held that Hale does not apply to the PRR statute. We therefore agree with the Fifth District’s opinion in Young and hold that a trial judge may impose consecutive PRR sentences even if the offenses arise out of the same criminal episode. We certify conflict with the First District’s opinion in Mosley.

Affirmed.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.


text:
    Alonzo JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1660.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.
    Alonzo Jones, Bonifay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See McKinney v. State, 66 So.3d 852 (Fla.2011).

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


text:
    Dayna BOLERA, Appellant, v. John PAPA, Royal Palm Medical, Inc., PT Centers of Florida, Inc., a Florida Corporation, and LAJT, LTD, a Nevada Corporation, Appellees.
    No. 4D12-4300.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.
    Rehearing Denied July 30, 2014.
    Peter J. Malecki of C. Brooks Ricca, Jr. & Associates, P.A., West Palm Beach, for appellant.
    Elliot B. Kula, Daniel M. Samson, W. Aaron Daniel of Kula & Samson, LLP, Aventura, and Jared A. Levy of Dimond, Kaplan & Rothstein, P.A., West Palm Beach, for appellees John Papa and Royal Palm Beach Medical, Inc.
   PER CURIAM.

Appellant, Dayna Bolera, appeals the trial court’s order granting appellees Dr. John Papa and Royal Palm Beach Medical, Inc.’s (“RPBM”) verified motion to strike appellant’s pleadings for fraud upon the court. The trial court’s order struck, with prejudice, the third amended complaint of appellant and PT Centers of Florida, Inc. (“PTC”), as well as appellant’s answer and affirmative defenses to appellees’ complaint. The court also entered judgment on liability against appellant but ordered a future trial on damages to take place.

The portions of the order striking appellant’s answer and affirmative defenses and entering judgment only on liability are non-final and non-appealable. See, e.g., Walter T. Embry, Inc. v. Lasalle Nat’l Bank, 868 So.2d 661, 662 (Fla. 4th DCA 2004); Sterile Products Corp. v. Jones, 702 So.2d 628 (Fla. 5th DCA 1997); Brannon v. Johnston, 83 So.2d 779 (Fla.1955). We decline to address the merits of these portions of the order.

This court reviews an order dismissing a complaint for fraud upon the court under a narrowed abuse of discretion standard. Herman v. Intracoastal Cardiology Ctr., 121 So.3d 583, 588 (Fla. 4th DCA 2013). “The standard of appellate review of a ‘clear and convincing finding’ [by the trial court of fraud upon the court] is whether the finding is supported by competent, substantial evidence.” Id. (citation omitted).

The multiple exhibits attached to the trial court’s order provide competent, substantial evidence to support the court’s findings that appellant committed a fraud upon the court. It cannot be said that the court abused its discretion in striking the third amended complaint. Thus, we affirm the portion of the order striking the complaint.

Affirmed.

LEVINE, CONNER, and KLINGENSMITH, JJ., concur.

      . PTC did not file a notice of appeal or a notice of joinder. Thus, pursuant to Florida Rules of Appellate Procedure 9.020 and 9.360, PTC is an appellee.


author: PER CURIAM. EVANDER, J.,

text:
    In the Interest of I.B., a child.
    No. 5D13-2796.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2014.

      Jerri A. Blair and George E. Carr, Jerri A. Blair, P.A., Tavares, for Keith and Heidi Farling.
    Christine E. Arendas and Natalie Martin Weech, Arendas Law, P.A., Saint Cloud, for Sheritta Burt.
    H. Kyle Fletcher, Arendas Law, P.A., Saint Cloud, for C.A.
    Rosemarie Farrell, Children’s Legal Services, Orlando, for Florida Department of Children and Families.
    Laura E. Lawson, Tavares for Guardian Ad Litem Program.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon review of the motion for rehearing filed by Jerry A. Blair, we withdraw the previous opinion issued on May 9, 2014, and substitute this opinion in its place.

Blair, in her capacity as the adoption intermediary for the prospective adoptive parents (foster parents), appeals the trial court’s order striking the adoption consent form executed by C.A., the biological mother (mother). Determining that there is insufficient evidence in the record to support the trial court’s finding of duress, we reverse. However, we remand this matter for the trial court’s consideration of whether there is any other basis for invalidating the adoption consent at issue.

I.B., the minor child, was removed from the custody of his parents and placed in foster care. During a status hearing, the biological parents advised the trial court that the parents were proceeding with a private adoption by the child’s paternal aunt. Following that hearing, the foster care liaison was approached by the maternal grandmother and a maternal aunt regarding the possibility of having the foster parents adopt the child, saying that the mother did not want the child to be adopted by the paternal aunt. Subsequently, the foster care liaison was informed that the mother agreed to consent to adoption by the foster parents. As a result, at approximately 10:00 one evening, the liaison and a notary went to the jail where the mother was being housed to obtain her signature on an adoption consent form. The mother signed the consent form, but it was later determined that the consent form was invalid because it was not properly executed. A different notary then went to the jail to obtain the mother’s execution of a second consent form. The mother signed the second consent form.

Thereafter, Blair filed a petition to terminate the mother’s parental rights and an adoption petition on behalf of the foster parents. The consent form signed by the mother was attached to the petition. The paternal aunt’s intermediary responded by filing a motion to strike the mother’s consent form. The mother thereafter adopted the paternal aunt’s motion to strike her consent.

The trial court held an evidentiary hearing on the motion to strike. During the hearing, the mother testified that, on the night she signed the first consent form, her attorney was not present and she did not know that the liaison and notary were visiting her on behalf of the foster parents. According to the mother, she was told it was going to be an “open adoption,” but the intermediary did not explain to her what that term meant. The mother understood the term to mean that “anybody can come in and adopt [her son].” When asked if she had an understanding about whether she would have visitation rights, the mother replied “no.” She further testified that she did not understand what she was signing; however, she understood the documents would terminate her parental rights and would allow her child to stay permanently with the foster parents and that, if the foster parents did not choose to allow her to have visitation with her son, there was nothing she could do about it. The mother testified that no one explained what the consent meant, she was not provided a copy of the consent form, and no one advised her of her right to revoke her consent within three days of its execution. The mother further testified that she felt pressured by her family to agree to allow the foster parents to adopt her son. When asked about her execution of an affidavit of intent to work with Blair, the mother testified that she did not understand that she had already signed the first consent form to work with the foster parents. She testified that she read through the affidavit, but did not understand that she was agreeing to work with the foster parents. When asked whether she asked her attorney any questions about the affidavit, the mother replied “yeah, but she didn’t want to answer no questions.” She said that her “lawyer didn’t explain anything to me.”

The mother was questioned about her execution of the second consent form by the paternal aunt’s adoption intermediary, Attorney Christine Arendas:

[ARENDAS]: [Mother], do you recall the people that came for the signature on the second consent, the January 26th consent?
[MOTHER]: My lawyer was there and there was people on the other side of the glass [who] wanted me to sign it. [ARENDAS]: Do you know who those people were?
[MOTHER]: No.
[ARENDAS]: Do you know if they had any affiliation with Ms. Blair? [MOTHER]: No.
[ARENDAS]: Did they actually meet with you in person?
[MOTHER]: No, ma’am.
[ARENDAS]: Did they speak with you? [MOTHER]: No, ma’am.
[ARENDAS]: Did they explain what you were signing to you?
[MOTHER]: No, ma’am.
[ARENDAS]: Did you understand what you were signing at the time? [MOTHER]: I felt like I was pressured, so I just signed away.
[ARENDAS]: And you felt pressure from your family?
[MOTHER]: Yeah.

Arendas then questioned the mother about what induced her to sign the consent forms for the foster parents:

[ARENDAS]: So, you felt like you were being pressured into signing? [MOTHER]: Yes.
[ARENDAS]: Would you have signed but for the promise that you would see your son?
[MOTHER]: Could you repeat that again?
[ARENDAS]: Would you have signed consents for [the foster parents] to adopt your son but for the promise that you would see him again?
[MOTHER]: Oh, no.
[ARENDAS]: Okay.
[MOTHER]: I want the promise. [ARENDAS]: ... I just want to make sure we’re all clear here. Because of the promise that you would be able to see him again, you agreed to sign the consents?
[MOTHER]: Yes.

According to the mother, she was not provided with a copy of the second consent form, and again she was not advised that she had three days in which to revoke her consent. She testified that her lawyer was present at the signing of the second consent form, but counsel did not provide assistance to her. Counsel told the mother to “just sign the consent paper.”

Next, the mother testified about a subsequent meeting between herself, her attorney, and Arendas. During this meeting, the three reviewed the first and second consent forms. Arendas explained to the mother each of the statutory disclosure items. She also explained that the mother had a three-day right of revocation, that Florida does not allow open adoptions per se, and that the foster parents could deny the mother visitation after she executed the consent form. The mother did not recall any of those items being explained to her by the foster care liaison and/or the notaries. The mother acknowledged previously agreeing to adoption by the paternal aunt, and she said she changed her mind due to pressure from her family. She also testified that she felt no pressure while signing the consent form for the aunt to adopt.

Following the hearing, the trial court entered an order striking the consent form executed by the mother. The court found that “by the time [the intermediary] went to the jail [the first time], family had already coerced the mother into signing the consent.” The court further found that the mother “was a bit confused regarding whether she was aware that the foster parents could deny her visitation; however, she did clearly testify that she would not have signed the consent to adopt without a promise that she would be able to see her son again.” Thus, the court concluded that the mother “did not fully understand what she was signing.” Additionally, the court found that the mother did not understand the affidavit of intent to work with Blair, and that she felt pressured to sign that affidavit. As to the signing of the second consent form, the court stated:

As the notary and two witnesses could not speak with [the mother] or hear her, there was no evidence that she took an oath, acknowledged that she read the consent, verified its contents to be true and correct and executed it freely and voluntarily as indicated in the notary’s certification in the consent.

Citing In re Adoption of P.R. McD., 440 So.2d 57 (Fla. 4th DCA 1983), the court concluded that the mother “was not provided with any counseling regarding the nature of the documents she was signing or their legal effects” and, therefore, her consent was not voluntary.

We review the trial court’s order for an abuse of discretion. See R.B. v. Dep’t of Children & Families, 997 So.2d 1216, 1218 (Fla. 5th DCA 2008); W.T. v. Dep’t of Children & Families, 846 So.2d 1278,1281 (Fla. 5th DCA 2003).

Upon executing a consent for the adoption of a child older than six months of age, the parent has three days in which to revoke that consent. § 63.082(7)(a), Fla. Stat. (2012). Generally, after the expiration of the three-day revocation period, consent can be set aside only when the court finds that the consent was obtained by fraud or duress. § 63.082(7)(f), Fla.

Stat. (2012). Duress is defined as “[a] condition of the mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition.” T.G. v. Dep’t of Children & Families, 9 So.3d 48, 49 (Fla. 4th DCA 2009) (quoting Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928)). The parent seeking to set aside the consent bears the burden of establishing duress by clear and convincing evidence. K.C. v. Adoption Seros., Inc., 721 So.2d 811, 812 (Fla. 4th DCA 1998).

Blair argues that the trial court erred in concluding that the paternal aunt proved, by clear and convincing evidence, that the mother’s consent was obtained by duress. We agree. As such, we must reverse the trial court’s order striking the mother’s consent form. However, the court also found that various procedural violations of the adoption statutes occurred in the process of procuring the mother’s consent.

Section 63.2325, Florida Statutes (2012), provides that the failure to meet a requirement of the adoption statute does not constitute grounds for revocation of consent to adoption “unless the extent and circumstances of such a failure result in a material failure of fundamental fairness in the administration of due process, or the failure constitutes or contributes to fraud or duress in obtaining a consent to adoption .... ” Here, the court found that the foster parents’ intermediary held the pre-consent meeting without the mother’s attorney being present, and that neither a representative of the adoption entity nor the mother’s attorney was present when the mother signed the consent form. In addition, the court found that the mother was not provided with reasonable notice of her right to select a witness of her own choosing, as required by section 63.082(4)(d), Florida Statutes (2012). These procedural safeguards are in place to ensure that biological parents are fully advised of the legal ramifications of consenting to adoption and to prevent undue pressure from being exerted by the adoption entity.

Accordingly, although the evidence in this case was not sufficient to prove duress by clear and convincing evidence, we remand this matter to the trial court for a determination of whether the evidence supports the striking of the mother’s consent form on another basis, as authorized in section 63.2325, Florida Statutes.

REVERSED and REMANDED.

PALMER and COHEN, JJ. concur.

EVANDER, J., concurs specially with opinion.

EVANDER, J.,

concurring.

I believe it is a close call as to whether there was sufficient evidence to support the trial court’s determination that duress had been proven by clear and convincing evidence. Regardless, given the circumstances surrounding the actual execution of the consent documents, the trial court had good reason to closely examine whether the mother’s consent was uncoerced and otherwise valid.

In the instant case, the first consent form was executed late at night at the Seminole County jail without the mother’s attorney being present. The second consent form was executed at the jail with the mother being separated from those seeking her signature by two glass walls. As a result, the mother was unable to verbally communicate with those individuals and resorted to using hand signals. Furthermore, the notary who brought the second consent form to the jail was only able to obtain access to the mother (limited as it was) through the use of a password. The notary was given the password by the foster mother who had received it from the maternal grandmother. The foster mother testified that, according to the maternal grandmother, the mother required the use of a password so that she would know that she was signing a consent for the foster parents. The use of a password, again according to the maternal grandmother, was necessary because the mother feared that her attorney would “trick her” into signing a consent in favor of the paternal aunt.

Section '63.082(l)(a)3., Florida Statutes (2012), provides alternative methods for executing a consent to adopt:

§ 63.082. Execution of consent to adopt or affidavit of nonpaternity; family social and medical history; revocation of consent.—
(l)(a) Consent to an adoption or an affidavit of nonpaternity shall be executed as follows:
3. If by any other person, in the presence of the court or by affidavit acknowledged before a notary public and in the presence of two witnesses.

I would suggest that although not required by statute, the preferable method where there are two or more competing parties seeking to obtain a parent’s consent to adopt, if feasible, is to have the parent execute the consent in open court. In the instant case, the late night visit to the jail, the use of a password, the utilization of hand signals because of physical separation at the jail, and the alleged fear of being tricked by one’s own counsel could readily have been avoided by having the mother transported from the Seminole County jail to the Seminole County Courthouse for the purpose of having her execute a consent document in open court. Doing so would have also provided the trial judge with the opportunity to engage in a meaningful dialogue with the mother to ensure that any consent given by the mother was the result of an informed and uncoerced decision.


author: DAVIS, Chief Judge.

text:
    Mary Ellen WRIGHT, Appellant, v. John K. CZARIKI and Kimberly S. Czariki, Appellees.
    No. 2D11-5307.
    District Court of Appeal of Florida, Second District.
    July 11, 2014.

      Richard R. Kosan, Brandon, for Appellant.
    No appearance for Appellees.
   DAVIS, Chief Judge.

Appellant’s motion for clarification is granted. The court on its own motion withdraws the previous opinion issued April 4, 2014, and substitutes the following opinion in its place. No further motions for rehearing or clarification will be considered by the court.

Mary Ellen Wright challenges the July 20, 2011, final order and judgment entered in the breach of contract and foreclosure action she filed against John K. Czariki and Kimberly S. Czariki, his wife. We affirm the trial court’s conclusion that Mrs. Wright is entitled to foreclose the mortgage, but as to the remaining .issues, we reverse and remand for a new trial.

Mrs. Wright and her now deceased husband retired and sold their business and the related real property to one of their employees and his wife, the Czarikis. The parties initially signed a document entitled “concept of sale,” which set forth the general structure of the sales. This document contemplated that the sale of the stock in the corporation that owned the business would be separate from the sale of the real property on which the business was located. Separate down payments were to be made for each purchase, and the remaining balance for each sale would be set at $400,000. The concept of sale, however, was silent as to the interest to be paid on the remaining balances.

When the sales were completed, a note and mortgage on the real property was signed, indicating a lower unpaid balance of $375,000 and an eight percent interest rate on the amount owed. The mortgage was recorded, and the Wrights maintained possession of the note.

According to Mrs. Wright, a note on the stock purchase also was signed and indicated a balance that was similarly reduced from that contemplated in the concept of sale. That note also set the interest rate on the stock purchase balance at eight percent. Mrs. Wright maintains that the note was lost or was last in the possession of the Czarikis.

The Czarikis ultimately stopped paying on both obligations, and Mrs. Wright filed an action for collection on the two notes and for foreclosure on the real property. Her amended complaint included counts for foreclosure on the real property and collection on the note and mortgage held thereon, reestablishment of and collection on the lost note for the business, breach of contract, open account, unjust enrichment, and equitable lien. In response to the complaint, the Czarikis denied the existence of a note on the stock transaction and denied that the parties had an agreement as to the rate of interest on that unpaid balance.

At trial, Mrs. Wright’s CPA testified that he had prepared the concept of sale document and that the contemplated interest amounts were not included at that time because the parties were still determining what the rate should be. He also testified that eventually the parties agreed that the rate for both notes would be eight percent. He prepared an amortization schedule related to the stock sale for a $375,000 note, which was introduced into evidence. According to Mrs. Wright’s CPA, the amortization schedule was prepared at the joint request of both the buyer and the seller and Mr. Czariki made a request that certain specific payments be designated within the schedule. From the time of the sale until the Czarikis defaulted, the CPA prepared and submitted yearly 1099 forms related to the interest amounts paid on the two loans for the Czarikis to use when filing their tax returns.

Contrary to the allegations Mrs. Wright made in her amended complaint, the Cza-rikis both testified that no note was signed regarding the stock sale and that there was no agreement as to the interest rate on that loan. When Mrs. Wright’s counsel attempted to impeach Mr. Czariki with contradictory deposition statements regarding this interest rate, the trial court sustained the Czarikis’ counsel’s objection, and the use of the deposition statements was not allowed. Mr. Czariki also testified that the concept of sale was just the initial plan for the sale and that the figures ultimately changed to accommodate his need to reduce the amount of the down payment.

Maintaining that no interest was owed on the loan for the stock purchase, the Czarikis presented expert witness testimony that they had overpaid on that transaction. The trial court agreed, noting that the concept of sale did not specify a rate of interest to be applied to the stock purchase. The court therefore concluded that Mrs. Wright was not entitled to any relief with regard to her claims for amounts due on the sale of the stock. The court further concluded that the claimed balance due on the note for the purchase of the real estate should be offset by the amount the Czarik-is overpaid for the stock.

The only count of Mrs. Wright’s complaint on which the trial court made specific findings was the breach of contract claim, which indirectly addressed the foreclosure. The trial court found that the Czarikis breached the contract for the sale of the real property and set a damage amount that, if not paid, would result in the foreclosure of the mortgage on the real property.

On appeal, Mrs. Wright argues that the trial court erred (1) by refusing to consider parol evidence where the concept of sale document did not include all of the essential elements of the agreement, (2) by refusing to allow the impeachment of Mr. Czariki using the earlier deposition transcripts, and (3) by imposing a setoff of the “overpayment” amount where the Czarikis never requested that relief. We agree that we must reverse based on the inherently inconsistent findings encompassed on the face of the trial court’s order.

With regard to Mrs. Wright’s parol evidence argument, the trial court found that the written concept of sale document was the only contract setting forth the terms of the sale of the business stock. The trial court also determined that the document was not ambiguous and that par-ol evidence therefore should not be considered. Because the four corners of the concept of sale did not specify a rate of interest and because Mrs. Wright could not produce a note for the balance owed on the stock purchase, the court concluded that no interest was owed on the outstanding balance for the sale of the business stock. We disagree.

“[P]arol evidence ... is proper when a contract’s terms are incomplete or facially ambiguous.” RX Solutions, Inc. v. Express Pharmacy Seros., Inc., 746 So.2d 475, 476 (Fla. 2d DCA 1999). All parties agreed that the concept of sale did not complete the transaction at issue in this ease. The parties dispute the amount of interest to be paid on the stock transactions, and that term is not included in the concept of sale. Mrs. Wright is therefore correct that the trial court should have considered parol evidence of the actual terms of the stock sale because the terms of the concept of sale document are incomplete.

Furthermore, in refusing to consider parol evidence, the trial court disregarded any testimony concerning the agreed-to terms of the sale itself. Yet the court acknowledged that the original amounts contemplated by the concept of sale were not the same amounts agreed to by the parties at the time of the transfer of title and stock. Thus, the trial court excluded the parol evidence related to the issue of interest under the agreement while at the same time accepting and relying on parol evidence as to the amount of outstanding principal owed on each of the transactions.

The trial court also calculated an offset amount for. the “overpayment” the Czarikis made on the stock sale based on their payment of interest that was not contemplated in the concept of sale. Not only was this offset not requested by the Czarikis, but their own expert testified that by his calculations, there was an overpayment of $9927.05 if indeed no interest was owed on the stock transaction. However, this is an amount that differs significantly from the $13,063.70 amount determined by the trial court to be the offset.

For all of these reasons, the trial court erred in entering final judgment on the claims related to the sale of the business stock. And because the offset amount for overpayment on the stock transaction was applied to the amounts owed under the note and mortgage for the real property, the errors spilled over into the trial court’s rulings on the foreclosure related to the real property. Accordingly, although we affirm the trial court’s determination that Mrs. Wright is entitled to foreclose the mortgage on the real property, we reverse the final judgment in all other respects. On remand, absent a settlement of this case, a new judge will have to be assigned to rehear the matter as related to damages and to the claims on the sale of the stock due to the untimely passing of the original trial judge. A new trial is also necessary because of the erroneous preclusion of par-ol evidence necessary to determine the terms of the stock sale. We further note that in any new trial, the use of the deposition transcripts for impeachment purposes should be allowed according to the rules of evidence. See Rothschild v. De Gaspari, 287 So.2d 341 (Fla. 3d DCA 1973) (reversing the trial court’s denial of use of a deposition that had not been verified as required by Florida Rule of Civil Procedure 1.310(e)).

Affirmed in part, reversed in part, and remanded.

SILBERMAN and VILLANTI, JJ., Concur.

      . Counsel for the Czarikis objected that prior to trial, Mr. Czariki had not had the opportunity to read the transcript of the March 2007 deposition. Trial was held in September 2010.

      . It appears these calculations are based on $375,000 as the amount owed rather than the $400,000 amount set forth by the original concept of sale. Thus this calculation is either off by $25,000 based on the face of the concept of sale or is another inherent ac-knowledgement by the trial court that the terms of the contract changed from those anticipated at the time of the concept of sale.

      . We note that any new trial on the claims related to the sale of the stock may additionally require a recalculation of the damages amounts related to the foreclosure of the real property.