author: STUART, Justice.

text:
    Ex parte Earnest Lee WALKER (In re Earnest Lee Walker v. State of Alabama).
    1121407.
    Supreme Court of Alabama.
    Jan. 17, 2014.

      Shanon Haack, Montgomery, for petitioner.
    Luther Strange, atty. gen., and Megan Ai Kirkpatrick, deputy atty. gen., and John J. Davis, asst. atty. gen., for respondent.
   STUART, Justice.

This Court issued a writ of certiorari to review the Court of Criminal Appeals’ decision that it did not have jurisdiction to entertain Earnest Lee Walker’s appeal from the new sentence imposed for his 2006 guilty-plea conviction for second-degree receiving stolen property. The new sentence was imposed after it was determined, following Walker’s filing a Rule 32, Ala. R.Crim. P., petition, that Walker’s original sentence exceeded the maximum authorized by law. The Court of Criminal Appeals dismissed Walker’s appeal by an order, from which Judge Welch dissented. Walker v. State, 127 So.3d 437 (Ala.Crim.App.2012). We reverse and remand.

Facts and Procedural History

In June 2006, Walker pleaded guilty to the offense of second-degree receiving stolen property, a violation of § 13A-8-19, Ala.Code 1975. The State established that at the time of sentencing Walker had three prior felony convictions. The trial court, applying the Habitual Felony Offender Act, sentenced Walker to 15 years’ imprisonment. Pursuant to the plea agreement, the trial court ordered that the sentence run concurrently with a sentence Walker was serving for a 2004 conviction.

In February 2010, Walker petitioned the circuit court for postconviction relief, pursuant to Rulé 32, Ala. R.Crim. P., from his 15-year sentence for the 2006 conviction for second-degree receiving stolen property. In his petition, he argued that his sentence was illegal because, he said, one of the prior felonies used to enhance his sentence had been vacated since his original sentencing. After the State conceded that Walker’s sentence had been improperly enhanced with the use of a felony conviction that had subsequently been vacated and that Walker was entitled to be resen-tenced, the circuit court granted Walker’s request for relief and ordered a new sentencing hearing.

On September 21, 2011, the trial court conducted a new sentencing hearing. According to the record, the trial court stated that in light of the State’s withdrawal of its request to proceed under the Habitual Felony Offender Act it would not apply the Habitual Felony Offender Act to Walker’s new sentence, and it resentenced Walker to 10 years’ imprisonment. During the hearing, the following occurred:

“THE COURT: ... At this time, Mr. Walker, I’m going to sentence you to 10 years to serve in [this case] and that sentence again would be pursuant to the limited grounds for the Rule 82 that I had already granted.
“MR. WALKER: So is it concurrent with the ’04 case, Your Honor?
“THE COURT: Mr. Walker it is whatever the law says it is. I’m not ordering anything special for you. Just whatever the law requires in this case is how it’s going to be handled.
“MR. WALKER: The previous sentence was concurrent, this is the purpose of me pleading guilty to [this case] concurrent with ’04. If you’re resentencing me today [in this case] and not running it concurrent, then that was not part of the per se plea agreement.
“THE COURT: I understand that’s yóur position. I’m telling you that whatever the law is, that’s how it’s going to be applied in this case. I’m not changing anything.
“MR. WALKER: Okay.
[Prosecutor]: Judge, would you go through on your plea of guilty I find you guilty and sentence him so that it’s clear?
“THE COURT: Mr. Walker, I find you guilty of the offense of receiving stolen property 2nd. I find again that that plea is entered voluntarily, knowingly, understanding^, and freely, and I sentence you to 10 years to serve in accordance with the statutory provisions for a Class C felony. Anything else?
“[Prosecutor]: Thank you.
“MR. WALKER: I give notice of appeal, Your Honor.”

On appeal, the Court of Criminal Appeals held that it was without jurisdiction to consider Walker’s appeal from his new' sentence, and it issued an order dismissing Walker’s appeal. In reaching its determination, the Court of Criminal Appeals relied on its decision in Hart v. State, 939 So.2d 948, 950 (Ala.Crim.App.2005) (holding that because the Court of Criminal Appeals had no statutory authority to review an appeal from a circuit court’s ruling vacating a sentence of death and imposing a sentence of life imprisonment without the possibility of parole, the appeal had to be dismissed). Walker then petitioned this Court for certiorari review.

Standard of Review

“ ‘This Court reviews pure questions of law in criminal cases de novo.’ ” Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).

Discussion

Walker contends, and the State agrees, that the Court of Criminal Appeals had jurisdiction to consider his appeal from the judgment and the new sentence imposed at the sentencing hearing conducted after the circuit court granted Walker’s request for postconviction relief, pursuant to Rule 32, Ala. R.Crim. P., from an illegal sentence.

■ Before this Court can address the Court of Criminal Appeals’ jurisdiction to entertain Walker’s appeal from his new sentence, we must consider the meaning of the circuit court’s grant of Rule 32 relief in the form of a new sentencing hearing.

Rule 32.1, Ala. R.Crim. P., sets forth the scope of the remedy a circuit court can provide in response to a petition for postconviction relief, stating:

“Subject to the limitations of Rule 32.2, any defendant who has' been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
“(a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
“(b) The court was without jurisdiction to render judgment or to impose sentence.
“(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.
“(d) The petitioner is being held in custody after the petitioner’s sentence has expired.
“(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court ...
“(f) the petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner’s part.”

Rule 32.1(b) permits a circuit court to grant a Rule 32 petitioner relief from an illegal sentence by authorizing the circuit court, without disturbing the underlying conviction, to vacate the petitioner’s sentence and order a new sentencing hearing. When a Rule 32 court grants a petitioner relief from an illegal sentence by ordering a new sentencing hearing, the Rule 32 court, without disturbing the conviction, returns jurisdiction over the underlying criminal matter to the trial court for the purpose of conducting a new sentencing hearing and pronouncing a new sentence. The Rule 32 court’s grant of a new sentencing hearing revives the underlying criminal matter, authorizing the trial court to conduct a sentencing hearing, independent of the Rule 32 action, and to resen-tence the defendant, if appropriate. Cf. Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010)(recog-nizing that the granting of habeas relief under 28 U.S.C. § 2254(b) invalidates the judgment authorizing confinement and provides the State with the opportunity to seek a new judgment through a new trial or a new sentencing proceeding).

Judge Welch dissented from the Court of Criminal Appeals’ order dismissing Walker’s appeal. This Court has considered the argument made by Judge Welch in his dissent that a circuit court’s order granting a Rule 32 petitioner post-conviction relief from an illegal sentence and ordering a new sentencing hearing is interlocutory and is not final until after the trial court has conducted the new sentencing hearing and resentenced the petitioner. Judge Welch maintains that, after the petitioner has been resentenced, the order granting Rule 32 relief becomes final, and the petitioner may appeal the decision on the Rule 32 petition and his or her new sentence. The determination to grant or to deny postconviction relief and the propriety of the new sentence, however, are two distinct judicial matters. The petitioner’s new sentence is the result of a complete and independent proceeding, and the legality of the new sentence is not the subject of the Rule 32 proceeding in which the new sentencing hearing was granted. Indeed, the grounds with regard to the legality of the new sentence were not pleaded in the Rule 32 petition; therefore, to hold that the grant of postconviction relief is interlocutory and that appellate review of that action is not proper until after the new sentence is pronounced would extend the scope of a decision on a Rule 32 petition and its appellate review beyond the parameters provided in the Alabama Rules of Criminal Procedure. Dunaway v. State, [Ms. CR-06-0996, Dec. 18, 2009] — So.3d —,—(Ala.Crim.App.2009)(“This issue was not raised in Dunaway’s consolidated amended Rule 32 petition. Therefore, it is not properly before this Court.”); Hooks v. State, 21 So.3d 772, 795 (Ala.Crim.App.2008) (“These claims were not raised in Hooks’s third amended postconviction petition. They are raised for the first time on appeal; thus, they are not properly before this Court.”).

Now, this Court must determine the appropriate procedure by which a defendant can appeal the legality of a sentence that is imposed at a sentencing hearing conducted after the circuit court has granted the defendant postconviction relief from an illegal sentence.

A defendant’s right to appeal in a criminal case is provided in § 12-22-130, Ala. Code 1975, which states:

“A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court.”

See Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980) (“Appeals lie only from judgments of conviction.”). Rule 26.2(b)(1), Ala. R.Crim. P., states:

“Upon a determination of guilt on any charge, or on any count of any charge, judgment pertaining to that count or to that charge shall be 'pronounced and entered together with the sentence. Pronouncement of judgment may be delayed if necessary until such time as sentence can be pronounced.”

(Emphasis added.)

Subsections (a) and (b) of Rule 26.9, Ala. R.Crim. P., provide that a trial court shall pronounce a judgment of conviction and a sentence in open court. Rule 26.9(b)(4) provides that, at the time of the pronouncement of sentence, the trial court shall inform the defendant of the defendant’s right to appeal.

In Ex parte Eason, 929 So.2d 992 (Ala.2005), this Court considered whether a conviction and sentence were ripe for appeal when the record indicated that the trial court had not expressly adjudicated a defendant guilty of the offense. In considering the issue, we noted that the Committee Comments to Rule 26.1, Ala. R.Crim. P., state:

“ ‘There is no absolute requirement in Alabama that the court enter a formal adjudication of guilty upon the record where the sentence is in compliance with a verdict of guilty, the reasoning being that a judgment of guilt is implied from the sentence. Thames v. State, 12 Ala.App. 307, 68 So. 474 (1915); Shirley v. State, 144 Ala. 35, 40 So. 269 (1906); Driggers v. State, 123 Ala. 46, 26 So. 512 (1898).’ ”

929 So.2d at 994. We stated:

“Because a judgment of conviction does not have to be phrased in formal language or include particular words of adjudication, we hold that if the record is clear that the trial court intended to adjudicate a defendant guilty and the sentence order necessarily involves the substance of the adjudication, then a judgment of conviction has been entered and the defendant may appeal.”

929 So.2d at 995. In other words, a judgment of conviction, which is a necessary indicator that a case is ripe for appeal, consists of a determination of guilt of the offense and a pronouncement of sentence. Because the record in Eason indicated that a judgment of conviction had been entered, albeit implicitly, this Court held that Eason’s conviction and sentence were ripe for appeal.

A reading of our statutes, rules, and easelaw establishes that a judgment of conviction as required in § 12-22-130, Ala. Code 1975, for determination that a defendant’s conviction of a criminal offense is ripe for appeal consists of the pronouncement of both a determination of a defendant’s guilt and a sentence. When both a determination of guilt and a sentence are evident from the record, a judgment of conviction is set forth, and a defendant’s case is ripe for appeal. Cf. Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) (noting that, in a criminal case, the final judgment includes the sentence); Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702 (1933).

Walker contends, and the State agrees, that a judgment of conviction was entered at the sentencing hearing in this case and, consequently, that Walker’s new sentence was ripe for appeal to the Court of Criminal Appeals. The record establishes that, at the sentencing hearing, the trial court reaffirmed its determination of guilt and pronounced sentence; therefore, a judgment of conviction was entered. Walker properly gave notice of appeal at the sentencing hearing. The Court of Criminal Appeals had jurisdiction to consider Walker’s appeal from his new sentence.

This Court has considered the Court of Criminal Appeals’ reliance on Hart to support its conclusion that that court lacked jurisdiction over Walker’s appeal. We agree with Judge Welch that Hart is inap-posite. As Judge Welch observed, the holding in Hart is limited to the “unique set of procedural circumstances” in that case. 127 So.3d at 441. Hart, who was 16 years old when he committed capital murder, had been sentenced to death in 1990. In 2005 the United States Supreme Court decided Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which prohibited the imposition of a death sentence on any.individual who was under the age of 18 when the murder was committed. The Alabama Attorney General, pursuant to a writ of habeas corpus from a federal district court mandating that Hart be re-sentenced in light of Roper, petitioned the trial court to vacate Hart’s death sentence and to sentence him to life imprisonment without the possibility of parole. Hart appealed his new sentence to the Court of Criminal Appeals, and that court dismissed the appeal, stating:

“[N]o statute ... allows Hart to appeal the circuit court’s ruling vacating his sentence of death and imposing a sentence of life imprisonment without the possibility of parole. Hart has already obtained appellate review of the proceedings that [led] to his capital-murder conviction.”

939 So.2d at 950.

The decision in Hart is limited to the unique facts of that particular case. Hart was a capital defendant, his death sentence had been invalidated by a United States Supreme Court decision, and he was re-sentenced at the request of the State, act-' ing pursuant to a federal court’s grant of habeas relief. Because of the specificity of the Roper decision and the statutory limitations in capital sentencing, the trial court did not have any discretion in resentencing Hart and sentenced him to the only available sentence provided by law. See Roper and § 13A-5-45, Ala.Code 1975.

The facts in this case are appreciably different from the facts in Hart. Unlike the trial court in Hart, the trial court in this case conducted a new sentencing hearing, pronounced Walker guilty of second-degree receiving stolen property, exercised its discretion in resentencing Walker, and ordered Walker to serve 10 years’ imprisonment. Walker’s new sentence was the result of the trial court’s new assessment of the applicable sentencing, circumstances. The trial court’s exercise of discretion creates a significant difference between the facts in Hart and in this case, and due process mandates that Walker have an opportunity to appeal his new sentence.

Conclusion

Based on the foregoing, the judgment of the Court of Criminal Appeals is reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and BOLIN, PARKER, MURDOCK, WISE, and BRYAN, JJ., concur.

SHAW, J., concurs in the result.

MAIN, J., recuses himself.

      . In a footnote, the Court of Criminal Appeals stated that Walker could challenge the legality of his new sentence by filing another Rule 32 petition.

      . The only two sentences available in Alabama for a defendant who has been convicted of capital murder are death and life imprisonment without the possibility of parole. See § 13A-5-45, Ala.Code 1975.

       Note from the reporter of decisions: On April 2, 2014, on remand from the Supreme Court, the Court of Criminal Appeals reversed and remanded by order.


source: Caselaw Access Project

author: PARKER, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte Kevin Durrell BROWN. (In re Kevin D. Brown v. State of Alabama).
    1130297.
    Supreme Court of Alabama.
    Feb. 7, 2014.
    Kevin Durrell Brown, pro se.
    Submitted on petitioner’s brief only.
   PARKER, Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and MURDOCK, J., dissent.

MOORE, Chief Justice

(dissenting).

I respectfully dissent because I believe the petition demonstrates a probability of merit. In particular, the petition alleges that the unpublished memorandum of the Court of Criminal Appeals conflicts with C.D.C. v. State, 821 So.2d 1021, 1026 (Ala.Crim.App.2001) (an accused is not entitled to the defense of entrapment if he or she was predisposed to commit the crime at issue), and Johnson v. State, 291 Ala. 639, 640, 285 So.2d 723, 724 (1973) (the defense of entrapment is a question for the jury when a court is presented with conflicting evidence regarding entrapment). The Court in Johnson opined that “[entrapment occurs when State officers or persons under their control, incite, induce, lure, or instigate a person into committing a criminal offense, which that person would not have otherwise committed, and had no intention of committing.” Id. In light of this definition, the following alleged facts provide special and important reasons to issue the writ of certiorari to consider whether, based on the holdings in C.D.C. and Johnson, the Court of Criminal Appeals properly held that the trial court had not erred when it refused to give a jury charge on entrapment.

On February 3, 2011, Investigator Jacob Williams of Russell County, who was wearing plain clothes, parked a pickup truck outside Bowman Apartments in Phenix City; the apartment complex is known for drug activity and is located within three miles of a school and a housing project. Williams asked Kevin Durrell Brown, who was walking home from work, whether Brown had any marijuana to sell. Brown stated that he did not but that he knew someone who did. He then entered an apartment and returned to the pickup truck to instruct Williams to come back in 30 minutes. Williams complied and returned to the apartment 30 minutes later. Brown then informed Williams that Brown still had not obtained any marijuana but that he had another source. Brown was unable to reach this source by telephone. After insisting that he had yet another source, Brown accepted $20 from Williams to purchase marijuana. Brown left with the $20 and returned with a bag of marijuana. Two officers then took Brown into custody, and one of the officers confiscated the bag of marijuana.

In his petition for a writ of certiorari, Brown argues that, because he was returning from work “and had no inclination of doing anything for anyone,” he was not predisposed to distribute marijuana; therefore, he reasons, under C.D.C., he was entitled to a jury charge on the defense of entrapment. The fact that Brown did not have any marijuana on his person when Williams approached him only strengthens Brown’s argument in this regard. If the evidence were to show that Brown was not predisposed to distribute marijuana, moreover, then the Court of Criminal Appeals’ holding in its unpublished memorandum might conflict with Johnson insofar as an accused is guaranteed a jury charge on entrapment when the evidence of entrapment presented by the accused and the State is contradictory.

“It is well settled that one may avail himself of the defense of entrapment where he is instigated, induced, or lured by an officer of the law, for the purpose of prosecution, into committing a crime that he otherwise had no intention of committing.” Adams v. State, 585 So.2d 161, 163 (Ala.1991). “Where the defense of entrapment is raised, two separate issues of fact are presented: first, whether there was governmental inducement; and second, if there was inducement, whether the defendant was ready and willing to commit the act without persuasion.” Id. If a defendant has carried his burden of showing that government conduct induced him to commit a crime that he otherwise would not have committed, “the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.” Lambeth v. State, 562 So.2d 575, 578 (Ala.1990). The facts as presented in Brown’s petition merit a closer look to see whether Brown proffered evidence showing that he would not have distributed marijuana but for Williams’s conduct and, accordingly, whether the burden shifted to the State to show beyond a reasonable doubt that Brown was predisposed to distribute marijuana.


author: PER CURIAM.

text:
    Marlon FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1793.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2014.
    Marion Fleming, Chattahoohee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire and Pamela J. Roller, Assistant Attorney Generals, Daytona Beach, for Appellee.
   PER CURIAM.

Marlon Fleming was granted a belated appeal to address the summary denial of his latest motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm as to all issues addressed in the order. But, as the State concedes, a remand is necessary so that the trial court can address an overlooked portion of Fleming’s motion.

Fleming committed a number of crimes that were charged in four separate cases in the year 2000. In 2001, Fleming entered negotiated pleas to resolve all four cases, resulting in a number of concurrent sentences, the longest of which are two sentences of 471.175 months in prison, with concurrent twenty-year firearm minimum mandatory terms. In his motion, Fleming challenged three lesser twenty-year sentences on aggravated assault charges, claiming that they were illegal in that they each exceeded the statutory maximum (of five years in prison) for a third-degree felony. In the order on appeal, the trial court granted relief as to one of the charges, reducing the sentence to five years, but did not address the claim with respect to the other two charges. On appeal, the State concedes that the trial court should have addressed the other two counts, noting that “to the extent that Appellant raised the same challenge to the sentences on counts five and six in case number 2000-CF-006410, that the trial court granted relief on [sic] in case 2000-CF-007495, the trial court should have granted the same relief in case number 2000-CF-006410.” We agree with the State that the trial court should have fully addressed Fleming’s argument, and remand with directions that the trial court address the overlooked sentences on the two remaining aggravated assault charges.

AFFIRMED; REMANDED WITH DIRECTIONS.

LAWSON, EVANDER and LAMBERT, JJ., concur.

      . In case number 2000-CF-006410, the State charged Fleming with two counts of Robbery with a Firearm, four counts of Aggravated Assault with a Firearm, one count of Shooting at, within or into a Building, and four counts of Kidnapping with Intent to Commit a Felony. In case number 2000-CF-007495, the State charged Fleming with two counts of Robbery with a Firearm, and one count of Aggravated Assault with a Firearm. In case number 2000-CF-0I0324, the State charged Fleming with one count of Robbery with a Firearm, two counts of Aggravated Assault with a Firearm, one count of Grand Theft (Third Degree) of $10,000 or more, and one count of Grand Theft of a Firearm. In case number 2000-CF-0104I4, the State charged Fleming with one count of Robbery with a Firearm, one count of Aggravated Assault with a Firearm, one count of Grand Theft (Third-Degree) of $10,000 or more, and one count of Grand Theft of a Firearm.

      . The longest sentences, imposed on the two Robbery with a Firearm charges in case number 2000-CF-006410, were not challenged in Fleming’s motion and will not be affected by the remand.

      . Aggravated assault with a firearm pursuant to section 784.02l(l)(a), Florida Statutes (1999) is a third-degree felony punishable by five years in prison. See § 784.021, Fla. Stat. (1999); § 775.082, Fla. Stat. (1999). The offense could not be reclassified pursuant to section 775.087(1), Florida Statutes because use of a weapon was an essential element of the offense. See § 775.087(1), Fla. Stat. (1999).


text:
    Cameron R. DENARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1890.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2014.

      Cameron R. Denard, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann Phillips and Anthony J. Golden, Assistants Attorney General, Day-tona Beach, for Appellee.
   PER CURIAM.

Cameron Denard appeals the summary denial of his motion for postconviction relief. The State properly concedes error. We reverse.

Denard was convicted and sentenced on various charges in early 2008. He appealed, and this Court affirmed in part, reversed in part, and remanded the case to vacate the conviction and sentence as to one of the counts. Denard v. State, 30 So.3d 595 (Fla. 5th DCA 2010). The mandate was issued on April 14, 2010.

On January 30, 2014, Denard filed a “Motion for Enlargement of Time” to file a belated motion for postconviction relief, claiming that he retained an attorney in January 2011 to file a timely motion, but his attorney never filed the motion. The “Motion for Enlargement of Time” was denied by the trial court on February 14, 2014. In denying relief, the trial court found that Denard’s claim was facially insufficient because he did not allege that he was precluded from filing a Florida Rule of Criminal Procedure 3.850 motion as a result of counsel’s neglect, and that the proper procedural vehicle to raise such a claim was a petition for writ of habeas corpus. Denard was given thirty days to file a habeas petition. Rather than filing a ha-beas petition, Denard filed the instant rule 3.850motion, asking the trial court to vacate and set aside his conviction and sentence based on three claims of ineffective assistance of counsel. Denard again asserted that he had retained an attorney to file a rule 3.850 motion, but no motion was ever filed.

Denard’s current rule 3.850 motion was filed more than two years after his convictions and sentences became final. As grounds for filing his postconviction motion beyond the two-year time limit, De-nard relies on Florida Rule of Criminal Procedure 3.850(b)(3). That rule allows the belated filing of a rule 3.850 motion where “the defendant retained counsel to timely file a [rule] 3.850 motion and counsel, through neglect, failed to file the motion.” Fla. R. Crim. P. 3.850(b)(3).

Rule 3.850(b)(3) was adopted to deal with the exact situation asserted by De-nard. See Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999). If counsel undertook to file a rule 3.850 motion on behalf of De-nard, and, through neglect, failed to timely file it, then Denard is entitled to file a rule 3.850motion belatedly. Courts have previously held that such motions, even when they are not filed as habeas petitions, trigger the necessity of the lower court to determine whether the defendant is entitled to belated consideration of his rule 3.850claims. See, e.g., Schwagler v. State, 118 So.3d 923, 924 (Fla. 2d DCA 2013) (holding that defendant was entitled to relief under the exception to the two-year time limit found in rule 3.850(b)(3)); Nunez-Leal v. State, 100 So.3d 66, 67 (Fla. 2d DCA 2011) (reversing and remanding the summary denial of defendant’s rule 3.850 motion for postconviction relief because defendant presented facts . sufficient to raise a valid ground for timeliness under rule 3.850(b)(3)); see also Montalvo v. State, 957 So.2d 1273 (Fla. 4th DCA 2007) (holding that although defendant did not label his motion for postconviction relief a petition for writ of habeas corpus, the motion, which alleged that counsel was ineffective for failing to timely file the motion, was facially sufficient and remand was required for an evidentiary hearing).

If Denard’s sworn allegations regarding the hiring of counsel to file a timely motion for postconviction relief are disputed, the trial court should conduct an evidentiary hearing on this issue rather than deny the motion as untimely. If not, the trial court should address the substance of the motion.

REVERSED and REMANDED.

LAWSON, COHEN and BERGER, JJ., concur.


author: PER CURIAM. COHEN, J.,

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Herbert CLAY, Respondent.
    No. 5D14-2096.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2014.
    Stephen D. Hurm, General Counsel, and Kimberly A. Gibbs, Assistant General Counsel, of Department of Highway Safety and Motor Vehicles, Orlando, for Petitioner.
    Rebecca Sonalia, of Musca Law, Naples, for Respondent.
   PER CURIAM.

Petitioner, Department of Highway Safety and Motor Vehicles (“DHSMV”), seeks second-tier certiorari review of a circuit court order granting Herbert Clay’s (“Clay”) first-tier petition for writ of cer-tiorari. The circuit court quashed DHSMV’s administrative order affirming the suspension of Clay’s driver’s license, concluding that the suspension violated the motorist’s due process rights. In so ruling, the circuit court declined to remand the case to the hearing officer for further proceedings, deeming the remand futile and burdensome. DHSMV argues that the circuit court departed from the essential requirements of law when it ordered the department to reinstate Clay’s license rather than remand the matter to the hearing officer for further proceedings. We agree and grant the petition.

This court has consistently held that when a circuit court quashes an order issued by a hearing officer on due process grounds, the matter is to be remanded to the administrative agency for further proceedings. See, e.g., Dep’t of Highway Safety & Motor Vehicles v. Futch, 142 So.3d 910, 915-16 (Fla. 5th DCA 2014) (concluding that the circuit court misapplied the law when it directed the Department to set aside the suspension and reinstate the motorist’s driver’s license rather than remand the matter for further proceedings); Dep’t of Highway Safety & Motor Vehicles v. Corcoran, 133 So.3d 616, 623 (Fla. 5th DCA 2014) (granting the Department’s petition for certiorari and explaining that remand for a new hearing is required when a subpoenaed breath test operator’s failure to appear is found to have caused a due process violation); 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.”). Because binding precedent provides an opportunity to cure a due process violation, we conclude that the circuit court departed from the essential requirements of law when it failed to remand the case for a new hearing.

Accordingly, we grant the petition for writ of certiorari and quash the order of the circuit court.

PETITION GRANTED.

ORFINGER and BERGER, JJ., concur.

COHEN, J., concurring specially, with opinion.

COHEN, J.,

concurring specially.

I agree that our precedent provides an opportunity to cure a due process violation in this context. I write separately to express concern about an apparent fundamental unfairness in these administrative proceedings. The transcripts reflect that at least some hearing officers exhibit a palpable predisposition. This is improper. Whether a proceeding is administrative or judicial, the parties are entitled to an impartial arbiter, and the record in this case — and in many that we see on appeal — does not reflect that. A neutral arbiter is the linchpin of due process and the foundation upon which the system of justice is built.

For years, we have instructed hearing officers that citizens are entitled to subpoena and present witnesses at hearings. See Klinker v. Dep’t of Highway Safety & Motor Vehicles, 118 So.3d 835, 839 (Fla. 5th DCA 2013); Dep’t of Highway Safety & Motor Vehicles v. Auster, 52 So.3d 802, 804-05 (Fla. 5th DCA 2010); Lee v. Dep’t of Highway Safety & Motor Vehicles, 4 So.3d 754, 757 (Fla. 1st DCA 2009); see also Dep’t of Highway Safety & Motor Vehicles v. Pitts, 815 So.2d 738 (Fla. 1st DCA 2002). And yet, time after time, these decisions are ignored.

In the instant case, the circuit court recognized that remand would in all likelihood constitute a futile act. Not only is the officer involved no longer employed by the police agency, he now resides out of state. However, our precedent provides for the opportunity to correct the order entered in this case, which did not begin to comport with any semblance of due process.

      . We have jurisdiction pursuant to Fla. R. App. P. 9.030(b)(2)(B). See also Art. V, § 4(b)(3), Fla. Const.

      . Although the circuit court’s order granting Clay's petition for writ of certiorari effectively reinstated Clay's driver's license, the order did not specifically direct DHSMV to do so. Indeed, such an order would be improper. See Park v. City of West Melbourne, 927 So.2d 5, 9 (Fla. 5th DCA 2006) (“ '[A]fter review by certiorari, an appellate court can only quash the lower court order; it has no authority to direct the lower court to enter contrary orders.' ” (quoting Gulf Oil Realty Co. v. Windhover Ass’n, Inc., 403 So.2d 476, 478 (Fla. 5th DCA 1981))).


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    Bruce ERVIN, Appellant, v. FLORIDA DEPARTMENT OF REVENUE and Hollie Starr, Appellee.
    No. 1D14-1193.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2014.

      Kelly R. McNeal of McNeal Legal, LLC, Gainesville, and Caroline Picart, Gaines-ville, for Appellant.
    Hollie Starr, pro se, Appellee.
   PER CURIAM.

Appellant appeals an amended downward modification order concerning his child support obligation, raising five issues. We reverse in part and remand for further proceedings consistent with this opinion.

Background

In 2008, Appellant’s marriage to Appel-lee was dissolved. The parties had one minor child. The amended final judgment adopted the marital settlement agreement entered into by the parties and awarded Appellee $869.58 in monthly child support. The lower court later entered an arrearage order, finding that, as of August 26, 2010, Appellant was in arrears in child support payments in the amount of $11,774.12 plus interest. The court ordered Appellant to make his monthly child support payment and, commencing on September 22, 2010, ordered Appellant to pay $25.17 in arrear-age payments, continuing monthly until the total arrearage was eliminated.

The Department of Revenue (DOR), on behalf of Appellant, filed a supplemental petition for downward modification, alleging a substantial change in circumstance. At the child support modification hearing, Appellee’s counsel admitted that Appellant’s child support obligation would adjust downward, but noted that Appellee was requesting an upward departure from the guideline minimum amount based upon the evidence, and also that Appellee was requesting the support obligation be extended beyond the child’s high school graduation date, because of the child’s alleged developmental disabilities.

In presenting its case, DOR’s counsel called both Appellant and Appellee to testify. Appellant testified to his income and also admitted that he had not exercised his right to overnight visitation with the child since 2008. Appellee also testified as to her income, including income from her bartending business. Appellee acknowledged that she had not listed a monthly income from the business on her financial affidavit, but asserted that she had not known the amount of monthly income until she prepared a document for her accountant for tax returns. She was questioned extensively by DOR’s counsel regarding her business income based upon this document. Upon questioning by her own counsel, Appellee asserted that this document reflected a net income of $55.46 in 2018 for her business. DOR’s counsel objected to the document being admitted into evidence because it was a compilation of records. The lower court sustained the objection and clarified that its reasoning for sustaining the objection was based upon the fact that the amount of money being discussed was minimal and would not have an overwhelming bearing on the calculations.

A DOR representative testified that, at the time of the hearing, the current ar-rearage per the Clerk of Court was $6,230.47, not including interest. DOR’s counsel submitted its child support guidelines worksheet, asserting that based on its calculations, the downward departure was $376 per month, and asked that the modification be granted retroactive to when Appellant’s supplemental petition was filed on November 6, 2013. ' DOR’s counsel asserted that its calculation did not take timesharing into consideration, because Appellant admitted that he had been unable to exercise his overnight visitations. Appellee’s counsel submitted her guidelines worksheet. The court, noting a substantial difference between the two calculations, stated it would make a decision after reviewing the documents and hearing closing arguments. Appellee’s counsel requested the opportunity to put on his client’s case, but the lower court declined to allow further evidence.

The court stated that it was granting a downward modification of $400 per month, stating that the figure it came up with was the best that it could from an equitable and subjective standpoint, not from a mathematical standpoint. Additionally, as part of its discretion, the court granted Appellee’s request to increase the amount by 5%. The court also added a $65 monthly addition to the child support. The court also awarded a breakdown of the uncovered medical expenses to be borne by Appellant in the amount of 43% and by Ap-.pellee in the amount of 57%. The court also extended Appellant’s child support obligation for two and a half years beyond the child’s high school graduation date.

The court entered its order granting the downward modification, establishing the child support guidelines amount to be $400 per month, based on the child support guidelines provided by both DOR and Ap-pellee’s attorney. The order notes that the amount was then deviated upward by 5% at the court’s discretion, resulting in a total of $420 per month. The court then increased this amount by an additional $65 per month due to the child’s extraordinary medical expenses, resulting in a total obligation of $485 per month. The order found that as of January 16, 2014, Appellant owed $6,230.47 in arrearages, but found that he was entitled to a credit of $779.66 in retroactive modified support from November 6, 2013 through January 21, 2014, resulting in Appellant’s total ar-rearages of $5,450.81. The court ordered Appellant to pay $115 per month until this amount was eliminated. Appellant was also ordered to pay 43% of the child’s reasonable and necessary health expenses incurred that were not covered by insurance. The order also required Appellant to provide health insurance for the minor child.

Analysis

Appellant first asserts that the lower court erred in awarding child support based upon what it deemed equitable and on a subjective figure instead of calculating the amount based upon the statutory guidelines and factors. We note that, as a separate issue in this appeal, Appellant also asserts that the lower court erred in calculating the child support by failing to include Appellee’s additional income from her business. We find that these two issues are intertwined and reversal is appropriate as to both.

“Child support decisions are typically discretionary.” Finney v. Finney, 995 So.2d 579, 581 (Fla. 1st DCA 2008) (citing Glasgow v. Wolfe, 873 So.2d 483, 484 (Fla. 1st DCA 2004)). “However, a trial court’s discretion concerning child support is subject to the statutory guidelines set forth in section 61.30, Florida Statutes.” Id. (citing Kareff v. Kareff, 943 So.2d 890, 892 (Fla. 4th DCA 2006)). ‘Whether a trial court has complied with the guidelines is a question of law to be reviewed de novo.” Id.

Section 61.30, Florida Statutes (2013), provides the starting point for determining the child support amount in both an initial proceeding and a modification proceeding. Pursuant to the statute, “[t]he child support guideline amount determined by this section presumptively establishes the amount the trier of fact shall order as child support ... in a proceeding for modification of an existing order for such support, whether the proceeding arises under this or another chapter.” § 61.30(l)(a), Fla. Stat. (2013).

In determining child support, a trial court is required to first determine each parent’s gross monthly income. See § 61.30(2), Fla. Stat. (2013). Gross income includes:

Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.

See § 61.30(2)(a)3., Fla. Stat. (2013). After calculating the gross income, a trial court must determine each parent’s net income by subtracting the statutorily-specified allowable deductions from the parent’s gross monthly income. See § 61.30(3)(a)-(g), Fla. Stat. (2013); § 61.30(4), Fla. Stat. (2013). The trial court must then determine the parents’ combined monthly net income. See § 61.30(5), Fla. Stat. (2013). Next, a trial court must determine the child support needed by utilizing the statutorily-provided schedules. See § 61.30(6), Fla. Stat. (2013). Then a trial court must determine each parent’s percentage share of the child support needed by dividing each parent’s monthly net income by the combined monthly net income. See § 61.30(9), Fla. Stat. (2013). Finally, a trial court must determine each parent’s dollar share of the child support needed by multiplying the minimum child support needed by each parent’s percentage share. See § 61.30(10), Fla. Stat. (2013).

As held by the Florida Supreme Court in Finley v. Scott, 707 So.2d 1112, 1117 (Fla.1998):

To assist trial courts in making this fact-intensive decision in future cases, we expressly point out that a trial court is to begin its determination of child support by accepting the statutorily mandated guideline as the correct amount. The court is then to evaluate from the record the statutory criteria of the needs of the child, including age, station in life, and standard of living, the financial status and ability of each parent, and any other relevant factors. If the trial court then concludes that the guideline amount would be unjust or inappropriate and also determines that the child support amount should vary plus or minus five percent from the guideline amount, the trial court must explain in writing or announce a specific finding on the record as to the statutory factors supporting the varied amount. Absent an abuse of discretion as to the amount of the variance, the trial court’s determination will not be disturbed on appeal if the calculation begins with the guideline amount and the variation is based upon the statutory factors.

(Emphasis supplied.)

Here, the hearing transcript reflects that the lower court failed to start with a calculation as to the child support guidelines amount. Instead, the lower court made clear that the $400 figure was not based on the mathematical calculation required by the guidelines, but was based on an equitable and subjective standpoint. The lower court also failed to take into account Appellee’s gross income from her bartending business, even if this was a nominal amount. Accordingly, we reverse and remand for the lower court to make a determination as to the downward modification of child support awarded based upon an application of section 61.30, Florida Statutes. On remand, the court may receive any additional evidence it deems necessary for the proper resolution of this issue.

With respect to the child 'support modification, Appellant also alleges that the lower court erred in increasing the child support award by $65 per month due to the child’s extraordinary medical expenses. On appeal, Appellee asserts that she never stated that there were “extraordinary medical expenses” involved in the care of their son. Accordingly, we reverse this portion of the order awarding $65 per month. We note that this does not change the portion of the order concluding that Appellant is. responsible for 43% of the child’s reasonable and necessary health expenses not covered by insurance, which has not been challenged on appeal.

Appellant also asserts that the amended downward modification order was erroneous, as it required that he provide health insurance for the child. Appel-lee concedes that this portion of the order was erroneous, as she has paid for the child’s health insurance since his birth and will continue to do so until she is unable. This concession was proper. We reverse and remand for the amended order to be corrected based upon this concession. With respect to the two other issues raised by Appellant on appeal, we affirm without comment.

Finally, we note that Appellant requested attorney’s fees within a paragraph contained in his amended initial brief. Attorney’s fees must be requested by filing a separate motion. See Fla. R. App. P. 9.400(b); see also McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 696 (Fla. 4th DCA 1999). Accordingly, Appellant’s request for attorney’s fees is denied.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Dominique B. KELSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1949.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2014.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dominique Kelsey seeks review of his convictions and sentences for armed robbery and kidnapping. He alleges that the trial court reversibly erred in reading the jury instruction with respect to weighing the evidence that the jury could consider whether the witness has a general reputation for dishonesty or truthfulness. We agree that the trial court erred and that the jury instruction in question was not harmless. Accordingly, we reverse and remand for a new trial.

Kelsey’s charges arose out of an alleged kidnapping that occurred in Duval County, Florida. During trial testimony, no evidence was offered about any of the witnesses’ general reputations for dishonesty or truthfulness. At court conference, the trial court asked the counsels for each party whether the instruction on reputation should be read to the jury. The trial court justified the reading of the instruction based on two police officers’ testimony about how the victim-witness appeared after the alleged kidnapping occurred:

[Tjhere were inferences to be drawn from his previous interactions with the police officers, his previous demeanor ... [gjranted that’s not reputation, but it’s kind of like reputation.

Over the contemporaneous objection by defense counsel, the trial court instructed the jury that it may consider a witness’s reputation for dishonesty or truthfulness.

Although a trial court has broad discretion in instructing the jury, it errs when it gives an instruction that has no factual basis in the record. Butler v. State, 493 So.2d 451, 452 (Fla.1986); McGriff v. State, 12 So.3d 894, 895 (Fla. 1st DCA 2009). Here, both Kelsey and the State agree that the trial court erred because there was no evidence given as to any witness’s reputation for dishonesty or truthfulness. Thus, the trial court abused its discretion by reading the disputed instruction because there was no reputation evidence adduced at trial.

In this appeal, the State argues that the error was harmless. We cannot say “beyond a reasonable doubt that the error did not affect the verdict.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). The State asserts that the jury, acting rationally, would not confuse the testimony on a witness’s demeanor with testimony on his reputation, as the trial court had. We disagree with the State and reason that the improper instruction could naturally lead a reasonable jury to conclude reputation evidence had been presented. As Kelsey’s defense rested on questioning the alleged victim’s veracity, there is a reasonable- possibility the errant instruction affected the verdict.

Accordingly, we REVERSE Kelsey’s convictions and sentences and REMAND for a new trial.

LEWIS, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Patrick THURMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3555.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    Patrick Thurman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeals of the judgments and sentences rendered on March 27, 2014, in Leon County Circuit Court case numbers 2003-CF-2697, 2003-CF-3102, and 2013-CF-1493, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in each of the foregoing cases. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the appeals authorized by this opinion.

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


text:
    Victor WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4546.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    Victor Wilson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied as legally insufficient.

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


text:
    James Michael HAWLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5266.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    James Michael Hawley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004). Petitioner’s alternative request that the court treat the petition as seeking mandamus relief is denied without prejudice to the filing of a separate petition invoking that remedy. Any such petition shall be accompanied by copies of the pleading(s) petitioner contends have not been timely considered by the trial court, and shall contain a certificate of service demonstrating that copies of the petition have been served on the Attorney General and the clerk of the lower tribunal.

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


text:
    Willie James HENDERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4572.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2014.
    Jeffrey Dean, Office of Criminal Conflict & Civil Regional Counsel, and Paula C. Coffman, Assistant Conflict Counsel, Cas-selberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

COHEN, WALLIS and LAMBERT, JJ., concur.


text:
    Jose A. DIEZ, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and BellSouth Telecommunications LLC, Appellees.
    No. 1D13-2249.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    Jose A. Diez, pro se, Appellant.
    Norman A. Blessing, G.C., Cristina Angelica Velez, for Appellees.
   PER CURIAM.

Jose A. Diez appeals a final order of .the Reemployment Assistance Appeals Commission (“Commission”) concluding that he does not qualify for reemeployment assistance because he lacks sufficient base period wage credits. See § 443.111(2)(b), Fla. Stat. We affirm.

Diez worked for BellSouth Telecommunications from some time in 1973 until December 15, 2011, when he was laid off. Under his employment contract, he then became eligible for (and took advantage of) participation in a “job bank” for six months while the employer attempted to find him another job. He performed no services for the employer during the six-month period. His employment contract also provided for a termination allowance of approximately $114,435, which he received post-termination, as contemplated. He received a payment of $18,029.34 during first quarter 2012, and took the remaining $96,406 during second quarter 2012 when he opted to leave the job bank before the six-month period ended.

Diez filed his claim for reemployment assistance on February 1, 2013. To determine whether Diez had sufficient wage credits to qualify for benefits, the Commission first established the pertinent base period as October 1, 2011, through September 31, 2012. See § 443.036(7), Fla. Stat. (2012) (defining “base period” as “the first four of the last five completed calendar quarters immediately preceding the first day of an individual’s benefit year”); § 443.036(9), Fla. Stat. (2012) (defining “benefit year” as “the 1-year period beginning with the first day of the first week for which the individual first files a valid claim for benefits!.]”). Diez does not contest these determinations.

Next, pursuant to section 443.111, the Commission calculated Diez’s wage credits. In pertinent part, the statute provides:

Qualifying requirements. — To establish a benefit year for reemployment assistance benefits, an individual must have:
(a) Wage credits in two or more calendar quarters of the individual’s base period.
(b) Minimum total base period wage credits equal to the high quarter wages multiplied by 1.5, but at least $3,400 in the base period.

§ 443.111(2), Fla. Stat. (2012). According to the Commission’s computations based on the wage information provided by the employer, Diez’s total base period wage credits ($129,615.73) are less than the high quarter wages ($96,406) multiplied by 1.5 ($144,609). Therefore, his wage credits do not meet the requirement in paragraph (b), and he does not qualify for reemployment assistance benefits.

Diez does not dispute either the employer-supplied wage information or the Commission’s arithmetic computations based on that information. Rather, he appears to argue that, because the $114,435 termination allowance equated to 90 weeks, or seven quarters, of pay, the Commission should have treated the allowance as if it had been paid over the course of seven quarters. Had the Commission done so, he argues, he would have sufficient base period wage credits, and thus, would be eligible for unemployment benefits.

Florida Administrative Code Rule 73B-11.016 governs the computation of wages for determining a claimant’s eligibility for benefits. It provides, in pertinent part:

Assignment of Wages to Calendar Quarters. Wages will generally be counted as reported by the employer. Upon request by the claimant or employer and for the purpose of determining the claimant’s weekly benefit amount and maximum available credits, wages may be assigned to the calendar quarter in which the wages were earned, but can be used in only one base period.

Fla. Admin. Code R. 73B-11.016(l)(b) (emphasis added). In this case, the Commission assigned Diez’s wages, including the termination allowance, to the calendar quarters in which he received payments, as reported by the employer. The Commission posits that it could not have used the alternative wage-assignment method in the manner Diez urges because he provided no remunerable services to the employer after he was laid off. Accordingly, Diez did not “earn” any portion of the termination allowance after December 2011, though he received the allowance post lay-off. Absent a showing by Diez that the Commission’s interpretation of the applicable law is erroneous, see section 120.68(7)(d), Florida Statutes, we must AFFIRM the final order on appeal.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


author: ORFINGER, J.

text:
    In re ADOPTION OF K.A.G., a Child.
    No. 5D14-2751.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 2014.
    Mark M. O’Mara, Loma M. Truett and Alyssa Flood, of O’Mara Law Group, Orlando, for Father.

      Bryan S. Gowdy and Jessie L. Harrell, of Creed & Gowdy, P.A., Jacksonville, for Grandmother.
    Thomas Wade Young, of Thomas Wade Young, P.L., Orlando; John R. Hamilton, of Foley & Lardner LLP, Orlando; Jamie Billotte Moses, of Fisher Rushmer, P.A., Orlando, for Amicus Curiae.
   ORFINGER, J.

The paternal grandmother (“Grandmother”) and legal father (“Father”) appeal the trial court’s final judgment dismissing Grandmother’s petition to adopt K.A.G. (“Child”), a four-year-old boy. We affirm in part and reverse in part.

Father, who is charged with killing Child’s mother, is incarcerated awaiting trial. As a result, the Department of Children and Families (“DCF”) instituted dependency proceedings and filed a shelter petition. Child was placed in the temporary custody of his maternal aunt (“Aunt”) and her live-in fiancé. DCF also petitioned to involuntarily terminate Father’s parental rights.

With Father’s written consent, Grandmother petitioned to adopt Child and to terminate Father’s parental rights. Grandmother complied with the statutory requirements under section 63.087, Florida Statutes (2013), for an adoption by a relative pending termination of parental rights. In response, Aunt filed a counter-petition for adoption in Grandmother’s adoption proceeding. The trial court — the same judge who presided over the dependency proceedings — held an evidentiary hearing on Grandmother’s adoption petition. Grandmother then moved to strike Aunt’s counter-petition for adoption, arguing that Aunt was not a party to the adoption proceeding and did not properly file her own petition to terminate parental rights and for relative adoption. Aunt argued that because Father had executed a valid consent for adoption, she had the right to seek to adopt Child. Grandmother and Father responded, contending that Father’s consent to termination of his parental rights and adoption was executed in favor of Grandmother only and was not an unconditional surrender of his parental rights.

The trial court ruled that Father’s consent was executed solely for the purpose of allowing Grandmother to adopt Child and, consequently, Aunt did not have the necessary consent to proceed with her petition for adoption. Accordingly, the court granted Grandmother’s motion to strike Aunt’s counter-petition for adoption. Aunt then moved to intervene in the adoption proceeding. She argued that she should be able to present evidence as to the factors articulated in section 63.082, Florida Statutes (2013), including Child’s bonding with her and the permanency she offered Child. Grandmother argued, however, that the court had previously determined that section 63.082, Florida Statutes, would only apply if Child was in DCF custody and because Child was not, section 63.082 did not apply. The only question before the trial court, Father argued, was whether Grandmother was a proper party to adopt. The trial court agreed and denied the motion to intervene. The trial court then excluded counsel for DCF and the guardian ad litem from the courtroom because adoption proceedings are closed to all but the parties. See § 63.162, Fla. Stat. (2013).

The trial court then heard testimony from Grandmother and Aunt. After the testimony was concluded, Grandmother’s counsel argued that adoption offered Child permanency and should not be deferred because of concerns about Child’s ability to maintain a relationship with Aunt. Father asserted that because his parental rights were still intact, he had a constitutional right to make a permanency determination for Child. To that end, Grandmother asserted that the trial court was not permitted to veto a parent’s decision simply because it perceived that another placement might be “better.” Thus, counsel argued that although the State has a compelling interest in ensuring Child is protected, once Father makes a placement determination that is both safe and appropriate, the State must exercise its interest in the least restrictive means. If the trial court determined that Grandmother was fit and appropriate, then, her counsel argued, it should grant her petition and then proceed to determine a transition plan that would serve Child’s best interests.

Following the evidentiary hearing, the trial court entered a final judgment dismissing Grandmother’s petition. The court made several factual findings. Most pertinent, it found that Father had consented in writing to the adoption in accordance with Florida law and, more specifically, that Father consented to commit Child to the care of an intermediary “for subsequent placement with [Grandmother].” The court expressed concern that it could not consider the same evidence and factors in the adoption proceeding as it would have considered in the dependency proceeding. Further, the court observed that it had to determine whether Grandmother was fit and proper “in a vacuum,” without the ability to determine whether adoption by her was in Child’s best interests. The court determined that it was not authorized to appoint a guardian ad litem in the adoption proceedings, nor did it receive any testimony from counselors regarding the impact the adoption might have on Child’s mental and emotional state.

The court found “no reasonable explanation as to why the adoption proceeding should be conducted without requiring inclusion of such pertinent information and such key participants.” Thus, it relied on considerations such as the Child’s needs and Child’s bonding with his caregiver that “would [have been] required under section 63.082(6)(e) if the child was in the custody of the department and adoption entity legally permitted to intervene [in the dependency proceeding].” As a result, the trial court dismissed Grandmother’s petition. .

Grandmother and Father both timely moved for rehearing. In her rehearing motion, Grandmother again argued that, because Father had selected her to adopt Child, the court’s best interests analysis should not have been a comparison between the Grandmother and other potential placements. The court’s best interests analysis, she asserted, should have been exclusively confined to whether she was appropriate, fit, and able to protect Child’s well-being.

In Father’s rehearing motion, he argued that his consent to adoption was valid, absent findings that it was obtained by fraud or duress, which was not alleged. Father stated that the court misapplied the burden of proof. Pursuant to section 63.089, Florida Statutes (2013), the court should have applied the clear and convincing evidence standard only to determine whether Father had executed a valid consent and whether that consent was obtained according to the requirements of chapter 63. Then, he argued, the court should have determined, by a preponderance of the evidence, if adoption by Grandmother was in Child’s best interests, without utilizing section 63.082(6).

Father further argued that parents have a fundamental right to make decisions about how to rear their children and courts may not interfere with that decision-making absent significant, actual, or threatened harm to their children. Father asserted that because DCF was seeking termination of Father’s parental rights in order to allow Aunt (DCF’s choice) to adopt Child, all those interested in Child’s welfare agreed that adoption was in Child’s best interests. After the trial court denied the motions for rehearing, Grandmother and Father timely appealed.

A child’s best interests must be at the forefront when the court considers an adoption. See § 63.022(2), Fla. Stat. (2013). Our standard of review in a termination of parental rights case is highly deferential. N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). A trial court’s finding of clear and convincing evidence will not be overturned unless it may be said that, as a matter of law, no one could reasonably find such evidence to be clear and convincing. Kingsley v. Kingsley, 623 So.2d 780, 786-87 (Fla. 5th DCA 1993); L.F. v. Dep’t of Children & Families, 888 So.2d 147, 148 (Fla. 5th DCA 2004) (finding that “[w]here a trial court has found that there is clear and convincing evidence supporting a termination of parental rights, such findings enjoy a presumption of correctness and will not be overturned unless clearly erroneous and lacking evidentiary support”). We review a judgment of adoption for substantial, competent evidence. Noonan v. Snipes, 569 So.2d 1381, 1381 (Fla. 2d DCA 1990). •

Here, the trial court dismissed Grandmother’s petition because it “[did] not find by clear and convincing evidence that the father’s parental rights should be terminated pending adoption by the paternal grandmother.” Grandmother and Father contend that the trial court applied an erroneous “best interests” standard utilizing section 63.082(6), thereby disregarding Father’s constitutional right to select an adoptive parent for Child. They argue that the trial court should have considered only Grandmother’s fitness and whether her home was suitable when making a best interests determination.

Grandmother’s petition to terminate Father’s parental rights and adopt Child was filed under section 63.087(3), which provides that “[ajdoptions of relatives ... are not required to file a separate termination of parental rights proceeding pending adoption. In such cases, the petitioner may .file a joint petition for termination of parental rights and adoption....” § 63.087(3), Fla. Stat. (2013); see also § 63.102(6), Fla. Stat. (2013) (“Petitions for the adoption of a stepchild, a relative, or an adult shall not require the filing of a separate judgment or separate proceeding terminating parental rights pending adoption. The final judgment of adoption shall have the effect of terminating parental rights simultaneously with the granting of the decree of adoption.”). Thus, in this case, the termination of parental rights and the adoption are dealt with in the same proceeding.

Section 63.089(3)(a) allows the trial court to terminate parental rights pending adoption if it determines, by clear and convincing evidence, supported by written findings, that the parent has executed a valid consent under section 63.082 and the consent was obtained according to the requirements of chapter 63. Before the trial court can consider the best interests of the child, it must first determine that the parent’s consent was given as required by section 63.082. Since the trial court failed to find that Father’s consent either was or was not valid, dismissing the petition was error.

Had the trial court determined Father’s consent was valid, it should have then determined, in the same proceeding, whether Child should be adopted by Grandmother. § 63.087(3), Fla. Stat. (2013). Section 63.142(4), Florida Statutes (2013), concerning the procedures for determining whether a child should be adopted following a termination of parental rights, provides, in pertinent part:

(4) Judgment. — At the conclusion of the hearing, after the court determines that the date for a parent to file an appeal of a valid judgment terminating that parent’s parental rights has passed and no appeal, pursuant to the Florida Rules of Appellate Procedure, is pending and that the adoption is in the best interest of the person to be adopted, a judgment of adoption shall be entered.

(Emphasis added). The trial court should have applied section 63.142(4) to consider Child’s best interests with respect to the adoption, without utilizing section 63.082(6), which was inapplicable to this proceeding. ■ As the Florida Supreme Court has directed:

[T]he petition for adoption should be determined on the basis of the fitness of a petitioner who is petitioning to adopt the child and whether the adoptive home that would be provided for the child by that petitioner is suitable for the child so that the child can grow up in a stable, permanent, and loving environment. It is within those criteria that the determination as to the best interests of the child is to be made with regard to an adoption petition.

G.S. v. T.B., 985 So.2d 978, 983 (Fla.2008).

The trial court had before it two separate questions: (1) whether Father’s parental rights could be terminated based upon his consent; and (2) if so, was adoption by Grandmother in Child’s best interests. Different evidentiary burdens of proof apply to each determination. The former determination on “termination of parental rights” must be proven by clear and convincing evidence, while the latter, “best interests determination,” is to be proven by a preponderance of the evidence. Compare § 63.089(3), Fla. Stat. (2013) (requiring that “a judgment terminating parental rights pending adoption” be determined “by clear and convincing evidence”), with Hack v. Janes, 878 So.2d 440, 444 (Fla. 5th DCA 2004) (stating that absent legislation to the contrary, the “preponderance or greater weight of the evidence [standard] is the generally accepted burden of proof in civil matters”). Here, the trial court required Grandmother to prove by clear and convincing evidence that allowing her to adopt served the best interests of Child. This was error.

Finally, we briefly consider several issues that may reoccur when this matter is again reconsidered by the trial' court. The trial court concluded that it had no authority to appoint a guardian ad litem for Child in this adoption proceeding. We disagree. Section 63.022(4)(k) provides: “In all matters coming before the court under this chapter, the court shall enter such orders as it deems necessary and suitable to promote and protect the best interests of the person to be adopted.” We believe this statute authorizes the trial court, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. In addition, courts have the inherent authority to protect children by appointing guardians ad litem when appropriate. See Simms v. State, Dep’t of Health & Rehabilitative Servs., 641 So.2d 957, 960-61 (Fla. 3d DCA 1994) (citing James v. James, 64 So.2d 534, 536 (Fla.1953)). Next, we agree with the trial court that Father’s consent to termination of his parental rights was not unconditional, but rather, was conditioned on the trial court granting Grandmother’s petition to adopt Child. If the trial court concludes that the adoption by Grandmother is not in Child’s best interests, Father’s consent to the termination of his parental rights is deemed ■withdrawn. Finally, we appreciate the trial court’s concern that it was not able to consider the same evidence in the adoption proceeding as it would be able to consider in the dependency and termination proceeding. To some extent, those concerns have been addressed by the recent adoption of Florida Family Law Rule of Procedure 12.003, which allows a court to consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family eases. See In re Amendments to the Fla. Rules of Judicial Admin., 132 So.3d 1114 (Fla.2014) (adopting rule 12.003, effective April 1, 2014). This rule, which was not in effect at the time this matter was considered initially, should alleviate many of the concerns expressed by the trial judge.

For these reasons, we affirm the judgment insofar as the court found Father’s consent to be conditional. In all other respects, we reverse and remand the matter for further proceedings.

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER and EVANDER, JJ., concur.

      . See § 63.087(3), Fla. Stat. (2013) (“Adoptions of relatives ... are not required to file a separate termination of parental rights proceeding pending adoption. In such cases, the petitioner may file a joint petition for termination of parental rights and adoption....”). The pendency of the dependency proceeding did not prohibit Grandmother from filing the separate adoption proceeding. See In re S.N.W., 912 So.2d 368, 373 (Fla. 2d DCA 2005).

      . Grandmother is correct that section 63.082(6)(a) only applies when a child is in DCF custody. See § 63.082(6)(a), Fla. Stat. (2013); see also R.L. v. W.G., 147 So.3d 1054 (Fla. 5th DCA 2014). Though not apparent from the opinion, the child in that case was in DCF custody.

      . Child has an appointed guardian ad litem in the dependency proceeding but not in the adoption proceeding. The guardian ad litem filed an amicus brief in this appeal.

      . We agree with the Second District Court when, in In re S.N.W., 912 So.2d at 373 n. 4, it described the best interests analysis thusly:
      We note that the “best interest” determination to be made under these circumstances is somewhat unique. If the birth parent has executed a valid and binding consent to an adoption, the court is not making a comparative assessment of the birth parents versus the prospective adoptive parents. Further, section 63.082(6)(d) specifically provides that the court "shall give consideration to the rights of the birth parent to determine an appropriate placement for the child” — an explicit recognition of the parents' constitutional right to the care, custody, and control of their children. See In re C.W.W. v. State, Dep’t of Children & Families, 788 So.2d 1020, 1023 (Fla. 2d DCA 2001) (citing Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Thus, the court is also prevented from comparing the birth parents’ choice of prospective adoptive parents with other potential placements that the court or the Department might choose for the child. Cf. § 39.801, Fla. Stat. (2004) (requiring that a court considering a petition for termination of parental rights must consider the manifest best interests of the child: "This consideration shall not include a comparison between the attributes of the parents and those of any persons providing a present or potential placement for the child”). Viewed in this light, the "best interest” analysis, requires a determination that the birth parent's choice of prospective adoptive parents is appropriate and protects the well-being of the child; not that it is the best choice as evaluated by the court or the Department in light of other alternatives.


text:
    Jason Shawn MOSES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3758.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2014.
    Jason Shawn Moses, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(c).

BENTON, CLARK, and SWANSON, JJ., concur.


text:
    Jeffrey W. CRAFT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5470.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2014.
    Jeffrey W. Craft, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, CLARK, and SWANSON, JJ., concur.


text:
    Nathan R. DEANDA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5405.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2014.
    Nathan R. DeAnda, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.' App. P. 9.141(c)(5)(A).

BENTON, CLARK, and SWANSON, JJ., concur.


text:
    DEPARTMENT OF REVENUE, Appellant, v. Brent A. DOVE and Kelli M. Crain, Appellees.
    No. 1D14-2189.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2015.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

The record supports the Department of Revenue’s assertion that the Division of Administrative Hearings’ subject-matter jurisdiction was not properly invoked by filing the requisite pleadings and notices as required by section 409.2563, Florida Statutes ,(2014). The modification of support in the Final Administrative Support Modification Order was in error. The order on appeal is vacated, and the case is remanded to the Division of Administrative Hearings with instructions to enter an order directing the Department of Revenue to begin modification proceedings under section 409.2563.

VACATED and REMANDED.

ROBERTS, RAY, and MAKAR, JJ., concur.


text:
    George Frank “Chip” MAY, and Jennifer A. Gruber, Appellants, v. COASTLINE EAST CORPORATION d/b/a ICF Construction Company, a Florida corporation; Windward Enterprises, Inc., a Florida corporation; Lajos Horvath; H & L Construction Corporation, a Florida corporation; Gabor Szilagyi; and Sarita May, Appellees.
    No. 1D08-6340.
    District Court of Appeal of Florida, First District.
    Jan. 2, 2015.
    Thomas S. Edwards, Jr., of Edwards & Ragatz, P.A., Jacksonville, for Appellant Jennifer A. Gruber; and Terry D. Bork, of Law Office of Terry D. Bork, Jacksonville, for Appellant George Frank “Chip” May.
    Gust G. Sarris, of Keystone Law Group, P.L., Orange Park, for Appellee Lajos Horvath, H & L Construction Corporation; and Lisa Disalle of Rolfe & Lobello, Jacksonville, for Appellee Coastline East Corporation d/b/a ICF Construction Company.
   PER CURIAM.

Upon consideration of the responses to this Court’s order to show cause dated November 21, 2014, this case is DISMISSED as moot.

PADOVANO, ROWE, and SWANSON JJ., concur.


text:
    Charles Eugene SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5421.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2015.
    Nancy A. Daniels, Public Defender, and Melanie R. Leitman, Special Assistant Public Defender of Messer Caparello, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The defendant, Eugene Smith, appeals his conviction for the sale of a controlled substance. Of the points raised on appeal, we agree that the trial court erred by admitting testimony from a law enforcement officer regarding common practices of drug dealers. Over defense objection, the officer responded affirmatively when the prosecutor asked the following question relative to the circumstances surrounding defendant’s arrest: “And in your years of experience in narcotics work, is this what delivering drugs from one person to another typically looks like?” This testimony invaded the province of the jury by suggesting the inference to be drawn from the facts by comparison to general patterns of criminal behavior, and it was unfairly prejudicial against the defendant. See Austin v. State, 44 So.3d 1260, 1262 (Fla. 1st DCA 2010) (“Testimony about the general behavior of certain kinds of offenders is inadmissible as substantive proof of a defendant’s guilt. Every defendant has the right to be tried on the evidence, not on the general characteristics or conduct of certain types of criminals.”); Lewis v. State, 754 So.2d 897, 902 (Fla. 1st DCA 2000) (holding that a police officer’s testimony based on general patterns of criminal behavior “encroached on the jury’s prerogative to decide between conflicting facts, to draw inferences from the facts, and to reach factual conclusions”). Because we are unable to conclude beyond a reasonable doubt that this error was harmless, we must reverse and remand for a new trial. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

LEWIS, CJ., BENTON and RAY, JJ„ concur.


text:
    Scottie D. LOWE, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D14-3399, 1D14-3437.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2015.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In these consolidated postconviction appeals, Appellant seeks review of the trial court’s orders denying his pro se rule 3.800(a) motion seeking additional jail credit in case numbers 2007-CF-4046 and 2013-CF-1708. Although the trial court properly treated the motion as having been filed under rule 3.801, we quash the orders denying the motion because the trial court lacked jurisdiction to rule on the motion while the direct appeal of Appellant’s judgment - and sentence in these cases was pending in this court. See Day v. State, 770 So.2d 1262 (Fla. 1st DCA 2000) (affirming order dismissing rule 3.800(a) motion for lack of jurisdiction because, after the adoption of rule 3.800(b)(2), “a party may not file a rule 3.800(a) [motion] during the pendency of a direct appeal”); Burch v. State, 721 So.2d 1198 (Fla. 1st DCA 1998) (quashing order denying postconviction motion that was entered while direct appeal was pending and explaining that “the trial court should have dismissed rather than denied [the] motion because a denial generally serves as a ruling on the merits precluding the refiling of a successive motion”). This disposition is without prejudice to Appellant seeking the additional jail credit in a rule 3.801 motion filed after the direct appeal is concluded or in a rule 3.800(b)(2) motion filed before the initial brief in the direct appeal, case number 1D13-4567.

ORDERS QUASHED.

BENTON, WETHERELL, and SWANSON, JJ., concur.

      . We decline the State’s invitation to construe the motion denied by the trial court as having been filed under rule 3.800(b)(2) because the trial court did not do so and, moreover, the notice and service requirements in that rule were not followed. See Fla. R. Crim. P. 3.800(b)(2) (requiring notice of the motion to be filed in the direct appeal) and (b)(2)(A) (requiring the motion to be served on all trial and appellate counsel of record).


text:
    M.M., a Child, Petitioner, v. Cody WOOD, Superintendent Leon Regional Juvenile Detention Center, Respondent.
    No. 1D14-3954.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2015.

      M. Blair Payne, Public Defender, and Elizabeth A. Rosado, Assistant Public Defender, Live Oak, for Petitioner.
    Pamela Jo Bondi, Attorney General; David Campbell and Virginia Harris, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Alleging that she was unlawfully held in postdisposition secure detention beyond the time authorized by law, M.M. petitions the court for habeas corpus relief. She argues that pursuant to section 985.27(l)(a), Florida Statutes (2014), a child such as her who is placed in secure detention awaiting placement in a nonse-cure residential program “must be removed from detention within 5 days, excluding Saturdays, Sundays, and legal holidays.” Petitioner alleges that her statutory right to removal vested after five days passed without a motion from the Department of Juvenile Justice to extend her secure detention. Although the State eventually sought and secured an order extending her detention beyond the initial five-day period, it did so eleven days after her initial commitment.

The language of the statute unmistakably requires that a child “must be removed from detention within 5 days” where the Department of Juvenile Justice has not sought an order authorizing continued detention. Here, M.M.’s detention should not have continued past day 5, to day 6 and beyond, in the absence of the Department seeking such an order. But, at this point, M.M. also acknowledges that she is no longer in detention care. She urges that we nonetheless entertain the merits of her claim because despite its mootness, the issue she presents is capable of repetition yet might evade review. See generally State v. S.M., 131 So.3d 780 (Fla.2013) (recognizing that a court has jurisdiction to consider the merits of a moot case where the situation presented is capable of repetition but would evade review). Petitioner concedes, however, that the claim she raises is a matter of first impression, and we conclude that while the issue may conceivably recur, it will not necessarily evade review if it does so. We therefore decline to exercise our jurisdiction to address a question that has been rendered moot by petitioner’s release from secure detention.

Accordingly, the petition for writ of ha-beas corpus is DISMISSED as moot.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.

      . In relevant part, section 985.27(l)(a), Florida Statutes (2014), provides as follows:
      A child who is awaiting placement in a nonsecure residential program must be removed from detention within 5 days, excluding Saturdays, Sundays, and legal holidays. Any child held in secure detention during the 5 days must meet detention admission criteria under this part. The department may seek an order from the court authorizing continued detention for a specific period of time necessary for the appropriate residential placement of the child. However, such continued detention in secure detention care may not exceed 15 days after entry of the commitment order, excluding Saturdays, Sundays, and legal holidays, and except as otherwise provided in this section.


text:
    Benjamin WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-58.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2015.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Gideon v. State, 145 So.3d 892 (Fla. 1st DCA 2014); Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014).

THOMAS, ROWE, and OSTERHAUS, JJ., concur.