text:
    Herman GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-0012.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.
    Herman Gibson, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We reverse the trial court’s order summarily denying appellant’s rule 8.850 motion for postconviction relief.

In Gibson v. State, 122 So.3d 428 (Fla. 4th DCA 2018), we remanded a prior order that denied appellant’s motion without explanation or attachments. On remand, the State filed a response which argued that the motion failed to satisfy the pleading requirements of Alcorn v. State, 121 So.3d 419 (Fla.2013). The trial court denied the motion based on the State’s response which argued that appellant should be granted sixty days to file an amended motion. The trial court provided no explanation other than to incorporate the State’s response into the order of denial.

This matter is remanded for the trial court to follow Florida Rule of Criminal Procedure 3.850(f)(2) and enter an order allowing appellant sixty days to file an amended motion if he can do so in good faith. See Spera v. State, 971 So.2d 754 (Fla.2007).

Reversed and remanded.

GROSS, LEVINE and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric LUCAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-172.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.

      Eric Lucas, Okeechobee, Pro Se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We reverse the trial court’s order which struck appellant’s rule 3.850 motion based on insufficiency of one claim. Appellant filed a premature appeal of the order which had granted leave to amend within thirty days. The postconviction time limit expired. Pursuant to Christner v. State, 984 So.2d 561 (Fla. 2d DCA 2008), we relinquished jurisdiction to the trial court. The court responded explaining that no amended motion had been filed within the time provided. The trial court entered a final order adopting its prior order striking the motion in its entirety.

In the claim at issue, appellant alleged that his counsel was ineffective in failing to consult and hire an ophthalmologist expert to rebut the State’s claim that the victim suffered “permanent damage” as an element of aggravated battery. The trial court agreed with the State that the claim was facially insufficient because appellant did not identify a specific witness, explain the testimony that could be elicited, or allege that the witness was available to testify at trial. Nelson v. State, 875 So.2d 579, 583 (Fla.2004). The court struck the entire motion with leave to amend. Neither the court, nor the State, addressed appellant’s other three claims. No records were attached.

The trial court erred in failing to follow our binding precedent. We confronted this issue in Terrell v. State, 9 So.3d 1284 (Fla. 4th DCA 2009), and explained:

As a threshold matter, the state asserts that this claim was facially insufficient because the defendant did not name the expert whom he wished to testify. Although the defendant is usually required to identify fact witnesses by name, we are aware of no authority requiring the defendant to provide the name of a particular expert where the defendant claims that trial counsel failed to secure an expert in a named field of expertise. We thus do not agree that the defendant’s postconviction claim was facially insufficient.

Id. at 1289. Appellant’s motion sufficiently explained the relevance and substance of the expected testimony and alleged that the outcome of the proceedings would have been different.

The State in this appeal acknowledges that this matter should be remanded for the trial court to consider appellant’s other claims which were not addressed in the proceedings below. See Fla. R. Crim. P. 3.850(f)(3). We agree.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

DAMOORGIAN, C.J., TAYLOR and MAY, JJ., concur.


text:
    Tyron FRANCOIS, as candidate for Broward County Commission District 2, Appellant, v. Jennifer BRINKMANN, an individual, Rico Petrocelli, an individual, and Dr. Brenda C. Snipes, in her official capacity as Supervisor of Elections of Broward County, Florida, Appellees.
    No. 4D14-2739.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.
    Mark Herron, J. Brennan Donnelly, and Robert J. Telfer III of Messer Caparello, P.A., Tallahassee, and Robert C.L. Vaughan of Kim Vaughan Lerner, LLP, Fort Lauderdale, for appellant.
    Daniel S. Weinger, William R. Scherer and Michael E. Dutko, Jr. of Conrad & Scherer, LLP, Fort Lauderdale, for appel-lees.
   PER CURIAM.

This appeal arises from a trial court order declaring that Tyron Francois was not a qualified write-in candidate for the office of Broward County Commissioner for District 2 and opening the Democratic Primary for that office to all registered District 2 voters. At issue is whether a statute can impose a residency requirement for placement on the ballot that differs from the Florida Constitution’s residency requirement for the office of county commission. We agree with Francois that section 99.0615, Florida Statutes (2014), is unconstitutional, and the circuit court improperly removed him from the ballot for the general election. We also agree that the circuit court’s injunction opening the Democratic primary to all registered District 2 voters was improper.

Factual Background and Trial Court Proceedings

Five candidates for Broward County Commissioner for District 2, all Democrats, qualified to have their names printed on the ballot for the August 2014 primary election. No Republican or Independent candidates filed qualifying papers. Francois, a sixth candidate and also a Democrat, filed qualifying paperwork to run as a write-in candidate. As a duly qualified write-in candidate, a blank space on the ballot for the November 2014 general election would have been provided to allow voters to write in Francois’s name as their vote for the county commissioner to serve District 2. Francois’s status as a qualified write-in candidate would constitute “opposition,” as that term has been interpreted in relation to the Universal Primary Amendment (UPA), Article VI, section 5(b) of the Florida Constitution, thus requiring that the primary election be closed. See Telli v. Snipes, 98 So.3d 1284 (Fla. 4th DCA 2012).

Appellee Brinkmann, a resident voter, filed a complaint in the circuit court, alleging that Francois was not properly qualified to be a write-in candidate because he did not physically live within the boundaries of the district as required by section 99.0615, Florida Statutes (2014). Brink-mann also sought an order forcing the primary election to be opened to all voters pursuant to the UPA. Francois conceded below, as he does on appeal, that he did not live in the district at the time he filed papers to qualify as a write-in candidate. However, he contends that section 99.0615 is facially unconstitutional because it conflicts with the Florida Constitution and violates equal protection. After an eviden-tiary hearing, the circuit court found that section 99.0615 is constitutional and disqualified Francois as a write-in candidate. The circuit court also entered an injunction that opened the primary election to all registered voters.

Legal Analysis

Francois argues that section 99.0615 is facially unconstitutional because it conflicts with the language of the Florida Constitution, according to supreme court interpretation, and constitutes a denial of equal protection. Francois also contends that because the circuit court’s decision to issue an injunction was based on its decision to disqualify him, an error in disqualifying him makes the injunction to open the primary improper. After reviewing the circuit court’s order, we are satisfied that the circuit court’s decision to disqualify Francois as a candidate was the primary predicate supporting its decision to issue the injunction.

Because the issue of disqualification in this case involves interpretation of the Florida Constitution, our review is de novo. Browning v. Florida Hometown Democracy, Inc. PAC, 29 So.3d 1053, 1063 (Fla.2010).

Statutes regulating the conduct of elections come to the court with “an extremely strong presumption of validity.” Pasco v. Heggen, 314 So.2d 1, 3 (Fla.1975) (citing Bodner v. Gray, 129 So.2d 419, 421 (Fla.1961)). Moreover, “only unreasonable or unnecessary restraints on the elective process are prohibited.” Id. (citing State v. Dillon, 32 Fla. 545, 14 So. 383 (Fla.1893)). The Florida Supreme Court has explained that in order to hold a legislative act unconstitutional, courts “must be convinced beyond a reasonable doubt that the act contravenes the superior law.” Mairs v. Peters, 52 So.2d 793, 795 (Fla.1951).

The crux of Francois’s argument is that section 99.0615 is unconstitutional because the timing of its residency requirement for write-in candidates at the time of qualifying conflicts with the timing of the residency requirement for county commission candidates at the time of election as determined by the Florida Supreme Court in decisions interpreting Article VIII, section 1(e) of the the Florida Constitution.

Article VIII, section 1(e) of the Florida Constitution states:

Except when otherwise provided by county charter, the governing body of each county shall be a board of county commissioners composed of five or seven members serving staggered terms of four years. After each decennial census the board of county commissioners shall divide the county into districts of contiguous territory as nearly equal in population as practicable. One commissioner residing in each district shall be elected as provided by law.

Art. VIII, § 1(e), Fla. Const, (emphasis added). In State v. Grassi, 532 So.2d 1055, 1056 (Fla.1988), our supreme court construed the constitutional provision regarding the residency requirement for county commissioners and stated “[t]he Florida Constitution requires residency at the time of election.” (emphasis added). It then held unconstitutional a statute which required a candidate for county commissioner to live in the district in which he sought to run at the time of qualification for the office.

Section 99.0615, a one-sentence statute applicable to only write-in candidates, states that: “At the time of qualification, all write-in candidates must reside within the district represented by the office sought.” § 99.0615, Fla. Stat. (2014) (emphasis added). Thus, Grassi addressed an identical claim as is present in this case.

In addition to Grassi, Francois argues that several cases have consistently held that “[n]o statute can add to or take from the qualifications for office set forth in the Constitution.” Norman v. Ambler, 46 So.3d 178, 183 (Fla. 1st DCA 2010); see also Wilson v. Newell, 223 So.2d 734, 735-36 (Fla.1969) (holding, under a previous version of the Florida Constitution, that a statute imposing an additional residency qualification for candidates for county commission was facially “unconstitutional, invalid and ineffective because it prescribes qualifications for the office of County Commission in addition to those prescribed by the Constitution”).

In view of the supreme court’s decision in Grassi we are “convinced beyond a reasonable doubt that the act contravenes the superior law.” Mairs, 52 So.2d at 795. We hold that section 99.0615, Florida Statutes (2014), is facially unconstitutional because the timing of its residency requirement for write-in candidates conflicts with the timing of the residency requirement for county commission candidates as established by Article VIII, section 1(e) of the Florida Constitution. Because we determine that section 99.0615 is facially unconstitutional, we do not address the equal protection argument raised. Thus, we reverse the circuit court’s order disqualifying Francois as a valid write-in candidate for office. We also reverse the injunction entered by the trial court opening the primary election to all voters. We remand for further proceedings consistent with this opinion.

Reversed and remanded.

WARNER, GROSS and CONNER, JJ., concur.

      . Pursuant to section 99.061(4)(b), Florida Statutes (2014), write-in candidates are granted write-in access on the ballot for the general election, irrespective of party affiliation. § 99.06 l(4)(b), Fla. Stat. (2014).

      . The UPA states: "If all candidates for an office have the same party affiliation and the winner will have no opposition in the general election, all qualified electors, regardless of party affiliation, may vote in the primary elections for that office.” Art. VI, § 5(b), Fla. Const.

      .The primary election was conducted on August 26, 2014. While this Court ordered an expedited briefing schedule, the circuit court’s order had the effect of removing Francois as a write-in candidate in the general election to be held on November 4, 2014. As it currently stands, the primary election for the Broward County Commissioner District 2 will be conducted concurrently with the general election on November 4, 2014, and will be open to all voters.


author: GERBER, J.

text:
    E.H., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D14-551.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.
    Antony P. Ryan, Regional Counsel, and Richard B. Kaplan of the Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Karla Perkins, Miami, for appellee.
   GERBER, J.

The mother appeals from the circuit court’s final order adjudicating her child to be dependent. She argues that the order was not supported by competent, substantial evidence. We disagree with the mother’s argument and affirm.

The Department of Children and Families (“the Department”) filed a petition for dependency shortly after the child was born. The petition alleged that the child had been abused, abandoned, or neglected, or was in imminent danger of illness or injury as a result of abuse, abandonment, or neglect. The petition more specifically alleged that the parents engaged in multiple domestic violence incidents; the mother had untreated mental health issues; the mother had another child removed from her care after she heard voices telling her to shake the child; and the mother was unemployed and had been evicted from her home.

The father consented to an adjudication of dependency. The court accepted his consent and entered an order adjudicating the child dependent as to the father, setting the matter for a hearing as to the mother, and accepting the case plan. The case plan contained tasks for both the mother and father to complete. As to the mother, the case plan required her to complete a psychological/parental capacity evaluation; complete a batterer’s intervention evaluation; participate in parenting education classes and follow all recommendations; and complete a comprehensive mental health/substance abuse/anger management assessment and follow all recommendations. The case plan noted that the mother recently was arrested for aggravated assault on the father and was released after the father indicated he did not want the charge pursued.

The hearing proceeded as to the mother. The mother testified as follows:

• She received treatment for mental health illness when she was a child, but she believed nothing was wrong with her then or since.

• Approximately four years before the trial, the Department took her first child away following allegations that she said she was going to Mil the child and that she heard voices telling her to shake the child. She claimed she never made such statements and that her aunt lied to the Department after they got into an argument. The mother ultimately was involuntarily committed under the Baker Act. As part of her case plan, she was required to take medication. However, she never did so. She claimed that she faked having a mental illness only to get a government assistance check.

• While she was pregnant with the child who is the subject of this case, the father went to jail after he “pulled [her] hair and spun [her] around.” Another time, the father hit and choked her, and she pressed charges against him. She got back together with the father because he is the baby’s father and she does not hold grudges.

• After she gave birth to the child who is the subject of this case, she and the father stayed at the hospital because the child was born prematurely. The mother denied getting into arguments with the father at the hospital, explaining that the father talked loudly.

• After the mother left the hospital, she went to live with a man who was not the father. She had lived off and on with the man before the child was born. At some point, she made a complaint to the police that the man had “touched on” her. However, after the child was born, she considered the man’s home to be a good home for her and the child because the man “don’t mess with kids.” She had no furniture at the man’s house for the child. She explained that she was going to live with her sister after the child was born, but her sister was evicted and all of the child’s furniture and supplies were thrown out.

• While the father was visiting her at the man’s house, she got into an argument with the father about baby photos which had been erased from her camera. She tried to call 911, but the father got the phone. A struggle ensued, during which she grabbed a knife and the father pulled it, cutting his hand. She went to jail for domestic battery. She downplayed the incidents of violence between her and the father, saying they got into an argument once or twice.

• At the time of the trial, she was homeless and lived with the father in a tent in the woods. She went to a charity where she received food, clothes, and a place to shower.

A security officer from the hospital at which the child was born also testified. The officer testified that while the child was in the hospital, he overheard a loud argument between the parents. Concerned that the argument would escalate into violence, he asked one of them to leave, and the father left. After the incident, the parents were not allowed to remain in the hospital room.

Also testifying was a senior mental health practitioner who performed an assessment of the mother. She told the practitioner that she felt depressed and admitted to hearing voices when she was younger. She denied any domestic violence between her and the father. She was vague regarding living arrangements for her and the child. She lived on and off with her sister, but indicated that her sister was being evicted. There were concerns regarding schizophrenia and auditory hallucinations, meaning voices telling her what to do. She was diagnosed as schizophrenic and bipolar, and she was prescribed medications to address these issues. The practitioner opined that the mother had a mood disorder with a violent component, explaining that she lets everything build up inside and then it all comes out at once. He believed the schizophrenia was in remission. He recommended that the mother complete a psychiatric evaluation, individual counseling, parenting education, and that the Department look closely at the home situation for possible violence. He thought with services in place, the child could be safe in the home. However, he admitted that he knew very little about the dynamic between the mother and the father before the assessment.

The case manager also testified. The mother admitted that she is depressed, that she and the father have big arguments, and that a domestic violence incident occurred when she was pregnant. The mother said that she does not want to stay with the father because he is not a good father for the child and uses drugs. The case manager reviewed the services available to the mother and made referrals. The recommended services included parenting classes; a domestic violence assessment because of the incidents of domestic violence and the parents’ criminal background; and a mental health assessment because the mother had another child removed after she heard voices, was not taking her medication at the time, and had last used medication two years earlier because she did not feel she needed it. The mother understood the services offered and said she was ready to cooperate to get her child back. However, the mother did not follow through on any of the referrals. The mother told the case manager that her attorney instructed her not to do anything until further notice. The day before the trial, the case manager visited the mother at the house of the man who is not the child’s father. The father was present. The case manager observed that the mother was loving, patient, and caring with the child. The mother sleeps on the sofa at the man’s house.

Also testifying was the man with whom the mother was living from time to time. He met the mother when she was pregnant and living in a tent. At some point, the father was in jail. The man invited her to live -with him because of her situation. After she gave birth, she went to her sister’s house and then came to stay with him. He was present when the parents got into an argument about erased pictures on a phone. The mother tried to call 911 and then picked up a knife. The father got cut when he tried to take it from her. If the mother and child were reunified, they could move in with him. He has a sleeper sofa but no furniture or supplies for the child.

In closing arguments, the Department argued as follows. The mother has untreated mental health issues which already affected the parenting of her older child. While she was pregnant with the child who is the subject of this case, domestic violence occurred. The mother was homeless at the time of the shelter. Services were offered and referrals were made, but the mother did not take them. The Department asked the court to find the child dependent as to the mother and enter a case plan with the tasks suggested by the mental health practitioner and the case manager.

The mother’s attorney argued that the child was not present during any of the domestic violence, and that the child had not been abused.

After the trial, the court entered a written order of adjudication and acceptance of case plan as to the mother. In the order, the court summarized the testimony of the mother and the other witnesses, and then made the following findings:

[The mother] suffers and has suffered from mental illness.
[The mother’s] perception of events and recollection are warped, consistent with mental illness.
[The mother] has impaired judgment and suffers from a mood disorder. Her impaired judgment and mood disorder affect her ability to assess the propriety of her relationship with the father ....
There is a nexus between [the mother’s] mood disorder and placing herself, [and] thereby the child, [in proximity] to acts of violence. There is a clear and present danger that the child will be harmed.
The Court finds by a preponderance of the evidence that there has been domestic violence. Domestic violence is presumed to negatively mentally affect a child. The Court finds by a preponderance of the evidence that [the mother] suffers from a mood disorder. Based on a preponderance of the evidence, there is strong evidence, competent evidence to establish a nexus between [the mother’s] mood disorder and these events occurring because of her impaired judgment, placing the child at risk of domestic violence effects, her lack of ability to maintain employment and stable housing.
“Abuse” means any willful act or threatened act (because of impaired judgment and mood disorder allowing situation violence with the father) that results in any physical^] mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.
The Court is making no findings as to the events that transpired between [the mother] and [the man with whom she was living from time to time].
The Court does find that [the mother] is loving with her child and has a bond with her child. She testified that she is willing to engage in services and do what is needed to reunify with her child.

The order directed the Department to maintain custody of the child and that the previously-accepted case plan would remain in effect.

This appeal followed. The mother argues no competent, substantial evidence existed to show that the child was “at substantial risk of imminent abuse.” § 39.01(15)(f), Fla. Stat. (2013). The Department responds competent, substantial evidence existed to show that the child was at substantial risk of imminent abuse based on the mother’s untreated mood disorder with a violent component and the history of domestic violence between the mother and the father.

We employ a mixed standard of review. See C.A. v. Dep’t of Children & Families, 958 So.2d 554, 557 (Fla. 4th DCA 2007) (“A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.”) (citation omitted).

We conclude competent, substantial evidence existed to show that the child was at substantial risk of imminent abuse. Abuse means “any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions.” § 39.01(2), Fla. Stat. (2013). Harm, in turn, occurs “when any person ... [finflicts or allows to be inflicted upon the child physical, mental, or emotional injury.” § 39.01(32)(a), Fla. Stat. (2013). “‘Imminent’ encompasses a narrower time frame and means ‘impending1 and ‘about to occur.’ ” C.A., 958 So.2d at 560 (citation omitted).

Here, the Department presented competent, substantial evidence that the mother has an untreated mood disorder with a violent component towards a child. As the mother testified, approximately four years before the trial, the Department removed her first child following allegations that she said she was going to Ml the child and that she heard voices telling her to shake the child. “[W]here a nexus is shown between the parent’s mental disorder and a significant risk of danger to the children), the trial court is not required simply to wait idly until the abuse ... occurs before adjudicating dependency.” E.M.A v. Dep’t of Children & Families, 795 So.2d 183, 187 (Fla. 1st DCA 2001). The mother’s lack of recognition of this mood disorder and her lack of participation in offered services only exacerbates the significant risk of danger to the child.

The Department also presented competent, substantial evidence of multiple domestic violence incidents between the mother and the father, including while the mother was pregnant and after the child was born. The mother continued to engage in a relationship with the father, despite the apparent volatile nature of their relationship. This evidence established a substantial risk of imminent abuse of the child given the likelihood of such violence continuing. See In re KB., 937 So.2d 709, 711 (Fla. 2d DCA 2006) (“[W]hen there is a history of domestic violence and the parents’ relationship is ongoing, prior incidents of domestic violence can support a finding that a present threat of harm exists.”); R.M. v. Dep’t of Children & Families, 886 So.2d 329, 332 (Fla. 5th DCA 2004) (“[Gjiven the mother’s -willingness to put herself in harm’s way and the father’s propensity for violence no matter who is present, we conclude that the trial court correctly applied the law in declaring [the child] dependent -”). This case perhaps presents a greater risk than that presented in R.M. because here, the Department’s evidence indicated that both the mother and the father, and not just the father, have engaged in domestic violence.

Based on the foregoing, we conclude that the circuit court did not err in adjudicating the child to be dependent as to the mother. We conclude without further discussion that the mother’s remaining arguments lack merit.

Affirmed.

WARNER and LEVINE, JJ., concur.


author: EMAS, J.

text:
    A.A., the mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Respondents.
    No. 3D14-1020.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2014.

      Joanne M. Postel, for petitioner.
    Karla Perkins, for Department of Children and Families; Hillary Kambour, for Guardian ad Litem Program.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   EMAS, J.

A.A., the Mother/Petitioner (“Petitioner”), has filed a petition for writ of certio-rari seeking review of the trial court’s order denying her motion for modification of a permanency order' and reunification with her children. For the reasons that follow, we grant the petition and quash the order below.

In 2011 the Petitioner’s children were adjudicated dependent and, in 2012, the trial court closed the case with the entry of an order placing the children in a permanent guardianship under the care and supervision of the children’s stepfather. The terms of the permanency order permitted supervised visitation by Petitioner.

In October 2013, Petitioner filed a sworn motion to reopen the case and sought modification of the permanency order and reunification with the children. The trial court reopened the case and, in December 2013, ordered a psychological evaluation of Petitioner. On February 24, 2014, without conducting an evidentiary hearing, the trial court denied Petitioner’s motion for modification. Petitioner sought rehearing alleging, inter alia, that the trial court failed to conduct an evidentiary hearing. The trial court denied the motion for rehearing.

It is undisputed that the trial court failed to hold an evidentiary hearing before denying the motion for modification. Petitioner asserts that, as a result, she was denied her due process right to present evidence and testimony in support of her motion. We agree. Once a permanency order is in place, section 39.621(9), Florida Statutes (2014), places the burden on the parent seeking reunification or increased contact with the child:

The permanency placement is intended to continue until the child reaches the age of majority and may not be disturbed absent a finding by the court that the circumstances of the permanency placement are no longer in the best interest of the child. If a parent who has not had his or her parental rights terminated makes a motion for reunification or increased contact with the child, the court shall hold a hearing to determine whether the dependency case should be reopened and whether there should be a modification of the order. At the hearing, the parent must demonstrate that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the modification.
(Emphasis supplied). See also Fla. R. Juv. P. 8.430(a)-(b)(l).

In the instant case, the trial court failed to conduct an evidentiary hearing, denying Petitioner a reasonable opportunity to present evidence and testimony to meet her burden to “demonstrate that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the modification.” We reject Respondent’s contention that, because the statute does not expressly require an evi-dentiary hearing, none was required. See Dep’t of Children and Families v. W.H., 109 So.3d 1269 (Fla. 1st DCA 2013); Dep’t of Children and Families v. B.D., 102 So.3d 707 (Fla. 1st DCA 2012). See also, Dep’t of Children and Families v. R.A., 980 So.2d 578 (Fla. 3d DCA 2008).

Petitioner further contends, and we agree, that the trial court’s order denying modification fails to contain the findings of fact required by section 39.621(10), Florida Statutes (2014), which provides:

The court shall base its decision concerning any motion by a parent for reunification or increased contact with a child on the effect of the decision on the safety, well-being, and physical and emotional health of the child. Factors that must be considered and addressed in the findings of fact of the order on the motion must include:
(a) The compliance or noncompliance of the parent with the case plan;
(b) The circumstances which caused the child’s dependency and whether those circumstances have been resolved;
(c) The stability and longevity of the child’s placement;
(d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
(e) The recommendation of the current custodian; and
(f) The recommendation of the guardian ad litem, if one has been appointed. (Emphasis supplied). See also Fla. R. Juv. P. 8.430(b)(2).

The order in the instant case recited the result of the psychological evaluation (which indicated that Petitioner’s mental illness has not significantly improved to the point where she could adequately and safely parent her children), and indicated that the guardian ad litem recommended closing the case.

The combined failures to hold an evidentiary hearing and to make written factual findings addressing the requisite factors enumerated in section 39.621(10), constitute a departure from the essential requirements of law, causing material injury that cannot be remedied on direct appeal. W.H., 109 So.3d at 1270.

We therefore grant the petition, quash the order under review and remand this cause to the trial court to conduct an evi-dentiary hearing and render an order in compliance with section 39.621(9) and (10), Florida Statutes.

      . In her sworn motion for modification and reunification. Petitioner describes a variety of actions she took to comply with her reunification case plan and attached seven supporting exhibits. See § 39.621(10)(a). The order denying the motion fails to articulate whether, and the extent to which, the trial court considered these allegations and exhibits. The motion also: details the steps Petitioner has taken to obtain and maintain stable employment and housing; describes the circumstances which initially resulted in the children’s dependency and how those circumstances have been resolved; and avers that Petitioner's children and the current custodian agree with the modification sought by the motion. See § 39.621(10)(b), (c), (d) and (e). The trial court’s order fails to address these factors.

      . There is generally no right to review by appeal of nonfinal orders in child dependency proceedings. Dep’t of Health and Rehab. Servs. v. Honeycutt, 609 So.2d 596 (Fla.1992); In re R.B., 890 So.2d 1288 (Fla. 2d DCA 2005); C.B. v. Dep’t of Children and Families, 975 So.2d 1158 (Fla. 5th DCA 2008). However, common law certiorari provides a remedy under appropriate circumstances such as those presented by the instant case. See In re

        J.H., 979 So.2d 363 (Fla. 2d DCA 2008); A.P. v. Dep't of Children and Families, 957 So.2d 686 (Fla. 5th DCA 2007).


text:
    Winston MUHAMMAD and Janet Muhammad, Appellants, v. BAC HOME LOANS SERVICING, LP, Appellee.
    No. 4D13-1580.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.
    Winston and Janet Muhammad, Lauder-hill, pro se.
    Lance T. Davies of Butler & Hosch, P.A., Orlando, for appellee.
   On Motion for Rehearing

PER CURIAM.

We grant the motion for rehearing, withdraw our prior opinion and substitute the following in its place.

We reverse the final judgment of foreclosure entered in this case. Appellants allege that the appellee failed to prove its standing to foreclose at the trial. Not only was there no evidence of standing, but the trial court treated the matter as though it were ruling on a motion for summary judgment. It never took testimony and merely interrogated the parties as to their respective positions, then ruled in favor of foreclosure. As no trial was ever conducted, a final judgment should not have been entered. We remand for a new trial, in which both parties may submit evidence necessary to sustain their respective positions.

Reversed and remanded.

DAMOORGIAN, C.J., WARNER and MAY, JJ., concur.


text:
    Scott ZANGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1504.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.

      Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

The State in its response to this Court concedes that the trial court erred in summarily denying appellant’s motion for post-conviction relief as untimely. The motion was timely filed. Ross v. State, 947 So.2d 699, 701 (Fla. 4th DCA 2007); Pierce v. State, 875 So.2d 726 (Fla. 4th DCA 2004) (following Snipes v. State, 843 So.2d 1043 (Fla. 2d DCA 2003)). Accordingly, we reverse and remand for consideration of the motion on the merits.

TAYLOR, MAY and FORST, JJ., concur.


text:
    Baron GREENWADE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4330.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2014.
    Nancy A. Daniels, Public Defender, and: M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In Greenwade v. State, 80 So.3d 371 (Fla. 1st DCA 2012), we affirmed Appellant’s conviction, after a guilty verdict, for trafficking in cocaine in an amount more than 200 grams but less than 400 grams. The sole issue on appeal was whether the trial court should have granted Appellant’s motion for judgment of acquittal on the trafficking charge because the state combined the contents of nine small bags of cocaine found in Appellant’s possession before lab testing and weighing the mixture instead of lab testing each bag for cocaine before commingling and weighing their contents. Because the State had field tested each bag, each tested positive for cocaine, and there was other circumstantial evidence of cocaine trafficking, we held there was sufficient evidence to sustain the trafficking conviction. We also certified conflict with Ross v. State, 528 So.2d 1237 (Fla. 3d DCA 1988), Safford v. State, 708 So.2d 676 (Fla. 2d DCA 1998), and Sheridan v. State, 850 So.2d 638 (Fla. 2d DCA 2003).

Subsequently, in Greenwade v. State, 124 So.3d 215 (Fla.2013), the Florida Supreme Court quashed our decision, and remanded with instructions that' Appellant’s conviction be reduced to simple possession and that he be resentenced accordingly. Therefore, we reverse Appellant’s conviction and sentence for trafficking in cocaine in an amount more than 200 grams but less than 400 grams, reduce the conviction to possession of a controlled substance, see section 893.13(6)(a), Florida Statutes (2008), and remand to the trial court for resentencing.

REVERSED and REMANDED.

WETHERELL, MARSTILLER, and SWANSON, JJ., concur.


text:
    Demond L. CORBIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3625.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    Rehearing and Rehearing En Banc Denied Sept. 26, 2014.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Demond Corbin, appellant herein, was inside an apartment along with four others, including Ben Dortch and Demetric Davis. Davis had money and jewelry that Appellant and Dortch wanted. At some point, Appellant pulled out a handgun, pointed it at Davis and said, “now you lay it down.” Instead, Davis reached for the handgun in Appellant’s hand and Dortch, who also had a gun, shot and killed him. Appellant and Dortch fled the apartment but Dortch soon returned and stripped Davis of his money and jewelry.

Appellant was charged with first degree felony murder with a firearm, and aggravated assault with a firearm. The main issue at trial was whether Appellant was a participant in the robbery or was surprised by the acts of Dortch. Appellant was convicted of manslaughter, a lesser included offense under felony murder, with a specific finding of firearm possession. He was also convicted of armed robbery with a firearm but has not appealed this conviction.

Appellant argues that he was charged with felony murder, which required proof that (1) a death occurred, and (2) it occurred during the commission or attempted commission of a robbery. Instead, he was convicted of the lesser included crime of manslaughter which requires proof of death and the accused intentionally committed the act which caused the death. According to Appellant, since he did not fire the shot that caused the death of the victim, he can only be guilty of manslaughter as a principal, and then only if he is shown to have helped another person commit or attempt to commit a crime. Based on the foregoing, Appellant urges that the only evidence presented is that he aided Dortch in attempting to commit robbery. It follows, he argues, that if one aids another to commit a robbery and a death occurs during the course of that robbery, he commits felony murder with which he was charged and for which he was acquitted. What is the effect of the inconsistency created by this acquittal and Corbin’s conviction of armed robbery?

The answer is clear. See Dross v. State, 915 So.2d 208, 205 (Fla. 5th DCA 2005) (“Generally, inconsistent jury verdicts are permitted in Florida because they can be the result of jury lenity, and therefore do not always speak to the guilt or innocence of the defendant”); McCloud v. State, 335 So.2d 257, 259 (Fla.1976) (“As the trial judge suggested, the jury simply may have found the felony-murder rule too harsh in this situation and reduced the penalty to the lesser-ineluded offense of manslaughter. Since the error was in [Appellant’s] favor, he is no position to complain of the lesser sentence.”).

AFFIRMED.

EVANDER, LAMBERT, JJ., and HARRIS, C.M., Senior Judge, concur.


author: LaROSE, Judge.

text:
    Ray A. WOLFORK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4413.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
    Ray A. Wolfork, Jr., pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Ray A. Wolfork, Jr., appeals the denial of his motion for postconviction relief. See Fla. R. Crim. P. 3.850. We affirm without comment but remand for correction of a scrivener’s error in the judgment. The judgment lists a conviction for aggravated battery (firearm). See § 784.045(l)(a)(2), Fla. Stat. (2003). However, the plea and judgment were for aggravated battery (great bodily harm). See § 784.045(l)(a)(l). We remand for the trial court to amend Mr. Wolfork’s judgment accordingly. See Willingham v. State, 48 So.3d 173,173 (Fla. 2d DCA 2010).

KHOUZAM and MORRIS, JJ., Concur.


author: CRENSHAW, Judge.

text:
    Henry Keith CAVALIERE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2452.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Appellee’s motion for rehearing is granted in part and denied in part; appellant’s motion for rehearing is denied. The prior opinion dated July 18, 2014, is -withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

Henry Keith Cavaliere appeals his conviction and sentence for lewd and lascivious molestation on a person less than sixteen years of age. He raises seven issues on appeal; we affirm on five of them without comment. But because the trial court erred in allowing testimony that bolstered the credibility of certain witnesses and allowed a prejudicial video to be admitted into evidence and played at trial, we reverse and remand for new trial.

Background

Cavaliere was charged after the alleged victim, C.S., accused him of sexual misconduct. C.S. decided to come forward after watching a Hollywood film with her mother and friend per her mother’s direction: the film focuses on a teenager who was sexually battered after meeting an online predator. After reporting Cavaliere’s purported conduct to the friend with whom she watched the film, C.S. then spoke with her teacher. A detective interviewed C.S. and at trial, he testified to his interactions with C.S. as he learned her story; C.S.’s teacher testified about C.S.’s revelation to her of the conduct and C.S.’s demeanor thereafter.

Discussion

Florida’s appellate courts have discussed credibility contests between victims and defendants and the harmful effect of law enforcement bolstering a victim’s testimony. As the Third District has stated:

[T]he police detective’s response served to bolster the victim’s credibility, and the admission of this testimony constituted reversible error. If the trial court had sustained the objection and immediately given a curative instruction, perhaps the damage could have been mitigated, but by overruling the objection, the jury was left with the impression that it could properly take into account the detective’s opinion. In Perez v. State, 595 So.2d 1096,1097 (Fla. 3d DCA 1992), we stated that errors committed from the improper admission of a police officer’s testimony that can be used to bolster the credibility of a victim’s trial testimony cannot be deemed harmless. See also Rodriguez v. State, 842 So.2d 1058, 1054 (Fla. 3d DCA 2003) (where we stated that “in cases such as this where the case consists of a credibility contest between the victim and the defendant, the error is not harmless.”).

Lee v. State, 873 So.2d 582, 583-84 (Fla. 3d DCA 2004). This court has long-recognized similar harm as discussed in Lamb v. State: “In reversing Brown’s conviction and awarding him a new trial, we stated the police officer’s testimony ‘had the immediate effect of putting a cloak of credibility upon the succeeding testimony of the mother and the victim.’ ” 357 So.2d 437, 438 (Fla. 2d DCA 1978) (quoting Brown v. State, 344 So.2d 641, 643 (Fla. 2d DCA 1977)).

Although the prohibitions on civilians vouching for a victim’s credibility have not been treated as harshly by the courts, such testimony can still be harmful error:

It is error to admit the testimony of a witness that is offered to vouch for the credibility of another witness....
... Because the child victim’s credibility was the determinative issue at trial, trial counsel should have objected to testimony and comments vouching for his credibility.

Rhue v. State, 693 So.2d 567, 568, 570 (Fla. 2d DCA 1996).

This case, like Lee, Lamb, and Rhue, turns on the credibility of the victim, in this case, a child. “The credibility of witnesses is for the jury to decide.” Rhue, 693 So.2d at 568. In this case, the detective and C.S.’s teacher vouched for C.S.’s credibility, usurping the jury’s role. See id. The detective testified to his training in kinesics then testified that “Kinesics is basically you’re a parent and you know your child did something wrong, you could read it. You could look at him and say, ‘John, you took the cookie out of the cookie jar.’ Certain movements and mannerisms — .” He then told the jury what truth qualification is: “Basically it establishes if the child has kind of a grasp what the truth is.” Most importantly, the detective then stated that the victim “had previously been truth qualified by the deputy. But not only that, her age at the time was eleven and by looking at her and kind of getting a feel for her I could tell that, you know, she was — she was acting appropriately. This wasn’t a joke to her.” Defense counsel made a proper objection and moved for mistrial; the court overruled the objection and denied the motion. The same error as in Lee was duplicated here: a law enforcement witness vouched for a victim and the court overruled the objection. 873 So.2d at 583-84. Because the court did so, there was no opportunity for counsel to request a curative instruction. There was therefore no opportunity to mitigate the damage done. And C.S.’s teacher’s testimony that C.S. “was happy. She was smiling. Happier I should say. She seemed like a ton of bricks was, you know, lifted off her shoulder. She was relieved. Big difference since that day that she told me what she told me” compounded the error by further vouching for the witness. Because the primary evidence against Ca-valiere was the victim’s testimony, we cannot say that the State has proved beyond a reasonable doubt that the error was harmless. See Geissler v. State, 90 So.3d 941, 948 (Fla. 2d DCA 2012) (citing State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)). Accordingly, we reverse and remand for new trial.

We also take this opportunity to comment on an error in admitting the video clip at trial. The State showed a several-minute clip of a Hollywood-made film to the jury. The clip, though not explicit, showed a teenage girl interacting in an intimate way with an older man she met online and who made sexual advances toward her; it can be inferred from the off-screen conduct that what occurred was a nonconsensual sexual battery of the teenage girl. C.S. viewed this film in its entirety with her mother and friend. It was after watching this film that C.S. first divulged the conduct giving rise to these proceedings.

“Relevant evidence is evidence tending to prove or disprove a material fact[; a]ll relevant evidence is admissible, except as provided by law.” §§ 90.401-402, Fla. Stat. (2012); Wright v. State, 19 So.3d 277, 291 (Fla.2009) (“The prerequisite to the admissibility of evidence is relevancy. All evidence tending to prove or disprove a material fact is admissible, unless precluded by law.”). Section 90.403, which provides that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence,” operates as just such a preclusion. See Wright, 19 So.3d at 291 (quoting § 90.403). The probative value of the video clip was related to being the spark for C.S.’s revelation of Cavaliere’s alleged conduct. It was adduced in response to defense counsel’s questioning C.S. whether she told her friend — while watching the film — that the events in the movie may have happened to her when she was younger. But C.S.’s testimony that she watched the film and that the film gave her the idea to come forward easily would have sufficed to describe the circumstances as C.S. saw them and to rebut the defense’s assertions. But instead, the video, depicting only the circumstances of a dissimilar predatory sexual battery, was admitted into evidence and shown to the jury. In this case the probative value of the video was low and the prejudice and risk of confusion of the issues was great; thus, the court erred in allowing the admission of the video. Cf. Banks v. State, 46 So.Bd 989, 998-99 (Fla.2010) (holding there was no error in admission of highly probative soundless surveillance video despite prejudice of showing a violent but short-lived crime occur); Singleton v. State, 788 So.2d 970, 976 (Fla.2001) (holding there was no error in admission of highly probative video despite prejudice of showing defendant in prison uniform).

In allowing prejudicial evidence in this case, the court committed harmful error. Accordingly, we reverse and remand for new trial.

Reversed; remanded for new trial.

NORTHCUTT and KELLY, JJ., Concur.

      . Although the error is particularly problematic in this case where only the prejudicial clip was shown, the rule of completeness, see § 90.108, provides no remedy because it is designed to alleviate the prejudice emanating from usage of an excerpt of a recorded statement, including videos; it neither adds probative value to the evidence nor does it reduce the harm flowing from the evidence itself.


text:
    R.W., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D14-1271.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2014.

      Steven Grossbard, for appellant.
    Karla Perkins, Miami, for the Department of Children and Families; Patricia Murphy Propheter for Guardian ad Litem Program.
    Before SHEPHERD, C.J., and EMAS and SCALES, JJ.
   EMAS, J.

R.W., the appellant/father (“Father”), appeals from a final judgment of termination of parental rights. Based upon the commendable confession of error by the Department of Children and Families, and our independent review, we reverse the final judgment.

The final judgment sets forth abandonment as the basis for the termination of Father’s parental rights. However, this conflicts with the trial court’s oral pronouncement at the conclusion of the trial, where the trial court announced: “I won’t find abandonment. I think you are right there is not a[n] abandonment here.” Where there is a conflict between the trial court’s oral pronouncement and its "written order, the oral pronouncement controls. B.C. v. Dep’t of Children and Families, 864 So.2d 486 (Fla. 5th DCA 2004).

Further, although the trial court’s oral pronouncement of termination appears to have been based upon a determination that the continuing involvement of the Father in the parent-child relationship threatens the safety or well-being of the child irrespective of the provision of services, the Department acknowledges its amended petition did not allege such a statutory basis, but pleaded only abandonment.

We therefore reverse the final judgment and remand this cause for further proceedings consistent with this opinion.

      . See § 39.806(l)(b), Fla. Stat. (2013).

      . See § 39.806(l)(c), Fla. Stat. (2013).

      . We note that Father, in his initial brief, and the Department, in its confession, agree that the proper course on remand should include the entry of an adjudication of dependency and the establishment of a case plan for Father.


author: ROWE, J. SWANSON, J.,

text:
    Joseph R. BIDEN, III, the Attorney General of the State of Delaware, Appellant, v. John S. LORD, Herbert H. Peyton, John F. Porter, III, William T. Thompson, III, Winfred L. Thornton, Wachovia Bank, N.A., As Trustees under the Last Will and Testament and Codicils Thereto of Alfred I. Dupont, Deceased, Harry L. Shorstein, State Attorney In and For the Fourth Judicial Circuit of the State of Florida, and The Nemours Foundation, a Not-forprofit Corporation Organized Under the Laws of Florida, Appellees.
    No. 1D13-5053.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.

      John B. Macdonald, Katherine E. Gid-dings, and Kristen M. Fiore of Akerman LLP, Tallahassee, for Appellant.
    Blaine H. Winship, Special Counsel, Tallahassee; Daniel K. Bean, Edward F. Ko-ren, Ben Z. Williamson, and Jennifer L.
    Kifer of Holland & Knight, Jacksonville; Sarah Butters of Holland & Knight, Tallahassee; R. Eric Bilik, Emily Y. Rottmann, and Rory J. Diamond of McGuire Woods, LLP, Jacksonville, for Appellees.
   CORRECTED OPINION

ROWE, J.

We deny Appellant’s motion for rehearing and request for the certification of a question of great public importance. We grant Appellant’s motion for a corrected opinion, withdraw our original opinion dated July 16, 2014, and substitute this corrected opinion.

Joseph R. Biden, III, as the Attorney General of Delaware, challenges the trial court’s order denying his post-judgment motion to intervene in a case where final judgment was entered in 2004. Because he has failed to show that the trial court abused its discretion, we affirm.

Factual Background

In 1935, Alfred I. duPont died as a resident and citizen of Duval County, Florida. Mr. duPont’s will established a testamentary trust and required it to be administered under Florida law and subject to the jurisdiction of Florida courts. The Trust provided for the creation of a charitable organization known as “The Nem-ours Foundation.” The purpose of the foundation was for the care and treatment of “crippled children, but not incurables, or the care of old men or old women, and particularly old couples, first consideration, in each instance, being given to beneficiaries who are residents of Delaware.... ” In 1971, the Trustees filed a lawsuit seeking judicial guidance in interpreting this purpose. The Delaware Attorney General was not a party to the litigation. The Duval County Circuit Court entered a judgment defining the term “crippled children” to include “persons under 21 years of age, who by reason of a physical defect or infirmity, whether congenital or acquired by accident, injury or disease, has been deprived of strength, activity or capability for service or use, in any part of the human body.”

In 1977, multiple lawsuits involving the Trust were filed, including a lawsuit between the Trustees. This Court affirmed the circuit court’s denial of the Delaware Attorney General’s motion to intervene in that action. Del. ex rel. Gebelein v. Fla. First Nat’l Bank, 381 So.2d 1075, 1078 (Fla. 1st DCA 1979). The Delaware Attorney General also filed his own lawsuit against the Trust. In 1980, the Trustees, Nemours, the Florida Attorney General, the Delaware Attorney General, and the Florida State Attorney for the Fourth Judicial Circuit entered into a stipulation to resolve all pending lawsuits. The stipulation named the Florida Attorney General as the representative of the “ultimate” charitable beneficiaries of the Trust and named the Delaware Attorney General as the representative of the Delaware charitable beneficiaries. The parties acknowledged that the Trust was governed by Florida law, and the stipulation incorporated the definition of “crippled children” set forth in the 1971 judgment. Moreover, the Delaware Attorney General, the Florida Attorney General, and the Florida State Attorney for the Fourth Judicial Circuit were tasked with “closely observing] the operations and activities of the Trust.” The circuit court entered a final judgment adopting and incorporating the terms of the stipulations.

In 1984, Alfred duPont Dent, as a trustee, filed a lawsuit against the other trustees to increase the trustee fee. Dent lost the case; Delaware was not a party to this action. In 1998, the Trustees sought judicial modification of the Trust. Delaware had notice of this action and elected not to participate.

In 2004, the Trustees filed an action to modify the Trust, and the Florida State Attorney for the Fourth Judicial Circuit and Nemours were the named defendants. The result of this litigation was a 2004 final judgment that redefined “crippled children” as “persons under 18 years of age,” although it provided that existing beneficiaries would not be affected by this change. The judgment expanded the Trust’s purpose to include preventative care services for beneficiaries of the Trust. The judgment also required the Trustees to distribute three percent of the fair market value of the Trust every year, even if such distribution required taking part of the principal. Delaware was not a party to this action, but the uncontroverted evidence demonstrates that the Delaware Attorney General was made aware of Nem-ours’ planned expansion into preventative care services in 2004. The 2004 judgment resulted in more than $111 million in preventative care services being provided to the Delaware beneficiaries.

In 2012, the Delaware Attorney General filed a post-judgment motion to intervene as an indispensable party and to set aside the 2004 final judgment. The trial court denied the motion, finding that the original parties to the action would be injured by the intervention and that the interests of justice would not be served by intervention. The trial court also found that the Delaware Attorney General was not an indispensable party to the 2004 action. This timely appeal follows.

Intervention

The sole issue before this Court is whether the trial court properly denied the motion to intervene. A trial court’s denial of a motion to intervene will not be reversed absent a showing of an abuse of discretion. Litvak v. Scylla Props., LLC, 946 So.2d 1165, 1172 (Fla. 1st DCA 2006).

After final judgment, intervention is not generally permitted. Dickinson v. Segal, 219 So.2d 435, 436 (Fla.1969); PS Capital, LLC v. Palm Springs Town Homes, LLC, 9 So.3d 643, 645 (Fla. 3d DCA 2009) (“ [intervention after judgment ... is extraordinary and disfavored.”). However, a very narrow exception to the general rule permits post-judgment intervention “when to do so would in no way injuriously affect the original litigants and when allowing intervention will further the interests of justice.” Lewis v. Turlington, 499 So.2d 905, 907-08 (Fla. 1st DCA 1986). Accordingly, in order for the Delaware Attorney General to be permitted to intervene in the 2004 action, the trial court was required to find (1) that intervention would not injuriously affect the original litigants and (2) that intervention would serve the interests of justice. The record does not support such findings, and the trial court did not err by denying the motion to intervene.

The Delaware Attorney General failed to demonstrate that post-judgment intervention would in no way injure the original litigants to the 2004 action. In Interest of M.L.M., 528 So.2d 54, 56 (Fla. 1st DCA 1988) (holding that the exception allowing post-judgment intervention exists only “where intervention would in no way injuriously effect the original litigants .... ”). If the Delaware Attorney General were permitted to intervene and set aside the 2004 judgment, the original litigants would be injured in several respects. First, the preventative program that was put into place as a result of the 2004 judgment would no longer be authorized under the terms of the unmodified Trust. Second, vacating the 2004 judgment would radically alter the provision of care to trust beneficiaries because the preventative programs would cease to exist. Third, vacating the 2004 judgment would result in the invalidation of over $111 million in benefits distributed to Delaware residents. Because intervention by the Delaware Attorney General would injure the original litigants, the trial court properly denied the motion to intervene.

The Delaware Attorney General also failed to show that the interests of justice would be served by permitting intervention eight years after the entry of final judgment. See In re Adoption of a Minor Child, 593 So.2d 185, 190 (Fla.1991) (permitting post-judgment intervention in a case involving grandparents’ interest in adopting their grandchild); Wags Transp. Sys. v. City of Miami Beach, 88 So.2d 751, 752 (Fla.1956) (permitting post-judgment intervention in a case involving the enforcement of zoning restrictions that would materially reduce the value of the homeowners’ property). Allowing such action would be contrary to Florida’s policy favoring judgment finality. Lewis, 499 So.2d at 907 (holding that the trial court abused its discretion in allowing a party to intervene seventeen months after entry of a final order). Further, the Delaware Attorney General has a separate action pending in the circuit court concerning the Trust. It would be more appropriate for the Delaware Attorney General to seek modification of the Trust in that proceeding rather than attempting to invalidate a judgment that has been final for eight years.

Additionally, Delaware had the responsibility to “closely observe the operations and activities of the Trust.” The elapse of eight years between the entry of the 2004 judgment and Delaware’s motion to intervene demonstrates, that either Delaware had knowledge of, but no objection to, the 2004 judgment or that Delaware neglected its responsibility under the 1980 stipulation. Most importantly, the Delaware Attorney General failed to show that his intervention was necessary to protect the interests of Delaware’s beneficiaries with regard to the 2004 judgment. Not only did the judgment expand benefits to Delaware beneficiaries to include over $111 million in preventative care services, but the interests of the Delaware beneficiaries were adequately represented in the 2004 proceedings. As was his statutory duty under the Florida Charitable Trusts Statutes, the Florida State Attorney for the Fourth Judicial Circuit represented the interests of all of the trust beneficiaries in the 2004 action, including the Delaware beneficiaries. § 737.507, Fla. Stat. (2004). As such, the trial court did not abuse its discretion in finding the interests of justice exception did not extend to the circumstances here.

Accordingly, because intervention by the Delaware Attorney General would injure the original litigants to the 2004 action and the interests of justice would not be served by the intervention, the trial court did not abuse its discretion in denying the motion to intervene.

Indispensable party

Disregarding the two-prong test for intervention, the Delaware Attorney General and the dissent urge this Court to proceed immediately to a determination of whether Delaware was an indispensable party to the 2004 litigation. However, neither presents any legal authority that would permit intervention for indispensable parties that do not meet the two-prong test. Regardless, the trial court properly determined that the Delaware Attorney General was not an indispensable party to the 2004 action.

The Florida Supreme Court has defined an indispensable party as “one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party’s interest or the interests of another party in the action.” Fla. Dep’t of Revenue v. Cummings, 930 So.2d 604, 607 (Fla.2006). The previous actions modifying the Trust demonstrate that the Delaware Attorney General does not meet this definition. In 1993, Delaware was notified of proceedings to modify the Trust and chose not to intervene. The fact that the Delaware Attorney General does not now argue that the 1993 judgment is void demonstrates that it is not impossible to completely adjudicate a modification of the Trust without the presence of the Delaware Attorney General.

Further, Delaware’s presence in the 2004 action was not necessary for the matter to be completely adjudicated. Mr. du-Pont chose to have the Trust administered in Florida. In 2004, Florida law provided that the state attorney for the judicial circuit where a trust had its principal place of administration was the proper representative of a charitable trust’s beneficiaries. §§ 737.501(5), 737.506, 737.507, Fla. Stat. (2004). Here, the Florida State Attorney for the Fourth Judicial Circuit was a named party in the 2004 action. As such, the interests of the trust beneficiaries, including the Delaware beneficiaries, were represented in the 2004 action. A specific representation by the Delaware Attorney General was not required.

Because the Delaware Attorney General was not an indispensable party to the 2004 action and the interests of the Delaware beneficiaries were represented by the Florida State Attorney for the Fourth Judicial Circuit, the trial court did not abuse its discretion when it denied the motion to intervene.

AFFIRMED.

MARSTILLER, J., concurs.

SWANSON, J., dissenting with opinion.

SWANSON, J.,

dissenting.

The trial court’s refusal to allow the Delaware Attorney General to intervene as an indispensable party to this case involving this trust resulted in a fundamental denial of due process. It is undisputed the Delaware Attorney General was a party to the 1980 court-approved settlement agreement regarding the proper interpretation of the testamentary trust created by Alfred I. duPont, which established and funds a charitable corporation known as “The Nemours Foundation.” Specifically, the agreement expressly recognized that first consideration is to be given to beneficiaries who are residents of Delaware and that the “Attorney General of the State of Delaware is the representative of the Delaware charitable beneficiaries of the Alfred I. duPont Testamentary Trust and of The Nemours Foundation, and as head of the Department of Justice of the State of Delaware is charged with protecting the rights of the said Delaware beneficia-ries_” It is also undisputed the Delaware Attorney General was never made a party in the subsequent action resulting in the 2004 judgment, which modified the trust and the 1980 agreement interpreting it by (1) reducing benefits to “crippled children” by three years by terminating them at age eighteen instead of age twenty-one; (2) requiring the trustees to invade the principal of the trust if necessary to ensure a three-percent distribution of the fair market value of the trust; and (3) eliminating the requirement that the Nem-ours Board of Managers be comprised of a three-fifths majority of Delaware residents.

Clearly, these material modifications were made without the participation of the designated representative of the primary intended beneficiaries of the trust. Because the Delaware Attorney General was an indispensable party to this action as the Delaware beneficiaries’ lawful representative, due process required that the Delaware Attorney General be given formal notice of the action. Failure to provide such notice would render the 2004 judgment void and subject to challenge at any time under Florida Rule of Civil Procedure 1.540(b)(4). See Space Coast Credit Union v. The First, F.A., 467 So.2d 737, 739 (Fla. 5th DCA 1985) (holding that “[j]urisdiction is perfected by a proper service of sufficient process on all indispensable parties” and the trial court’s failure to acquire jurisdiction over a party in the proper manner renders its judgment void and subject to attack at any time under rule 1.540(b)). Although the trustees asserted below that the Delaware Attorney General had actual notice of the action, this is disputed by the Delaware Attorney General. At a minimum, intervention and an evidentiary hearing are required to determine whether sufficient notice was provided and to resolve any other factual disputes regarding the validity of the 2004 judgment. Accordingly, I would reverse and remand with directions that the Delaware Attorney General be allowed to intervene for purposes of filing a rule 1.540(b)(4) motion to vacate the 2004 judgment as void. However, in light of the majority’s decision to affirm, I have no choice but to respectfully dissent.

      . The Delaware Attorney General conceded this point by stating in the motion to intervene that the original parties "may be affected” by Delaware’s intervention in the case.

      . Florida’s trust statutes also permits the Florida Attorney General to intervene on the behalf of charitable trust beneficiaries. However, the Florida Attorney General is not considered an indispensable party with regard to a trust administered under Florida law. § 736.0110(3) Fla. Stat. (2006) ("The Attorney General may assert the rights of a qualified beneficiary with respect to a charitable trust having its principal place of administration in this state.”) (emphasis added). It would defy logic to confer indispensable party status on the Delaware Attorney General where the Florida Attorney General has no such standing under Florida law.

      . The dissent also argues that the Delaware Attorney General was entitled to notice of the 2004 proceedings. This argument fails for several reasons. First, there is no requirement in Florida trust laws or in the language of the 1980 stipulation to notify the Delaware Attorney General about any attempts to modify the Trust. Under the 2004 statutes, the only parties required to be notified prior to an amendment to a charitable trust were the named charity and the state attorney for the judicial circuit where the trust had its principal place of administration. §§ 737.501(5), 737.506, Fla. Stat. (2004). Here, Nemours and the Florida State Attorney for the Fourth Judicial Circuit were notified of the action. Second, even though not legally required, a representative of Nemours met with the then-serving Delaware Attorney General in 2004 and informed her about the new goal of providing preventative programs to the Delaware beneficiaries. This was sufficient notice to trigger the Delaware Attorney General's duty under the 1980 stipulation to “closely observe the operations and activities of the Trust.” However, the record is devoid of any evidence that Delaware failed to further investigate this change.


text:
    Mai NGUYEN, Wife, Appellant, v. HUONG KIM HUYNH, Husband, Appellee.
    No. 1D13-4146.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.
    Lester Makofka, Jacksonville, for Appellant.
    Carin E. Maxey, of Maxey Law, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Mai Nguyen, the former wife, appeals a supplemental final judgment of dissolution of marriage and asserts seven errors. We find merit only in her argument that the trial court erred in devising its equitable distribution scheme relating to rental income from marital properties. Accordingly, we reverse that portion of the equitable distribution in the supplemental final judgment and remand for further proceedings.

The parties owned a number of residences that produced rental income during the marriage. In the supplemental final judgment, the trial court found that (1) from the October 24, 2003, filing date of the petition to dissolve the marriage until the parties’ separation on July 1, 2009, the former wife received $257,652.00 in net rental income from the parties’ marital assets; and (2) since the separation, the former wife had received $244,627.00 in total net rental income from the parties’ marital assets. As to both amounts, the court determined that the former wife had fraudulently conveyed, transferred, and/or hidden this income that she solely received. In the equitable distribution, the court distributed the sum of these amounts ($502,279.00) to the former wife as proceeds from real property received by her.

The former wife asserts that the trial court erred in offsetting rental income received by her during the marriage against her portion of the equitable distribution of marital assets. In a contested dissolution action like this one, where the parties have not entered and filed a stipulation and agreement, “any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence....” § 61.075(3), Fla. Stat. (2009). These findings must be sufficient “to advise the parties or the reviewing court of the trial court’s rationale for the distribution ....” § 61.075(3)(d); Jordan v. Jordan, 127 So.3d 794, 796 (Fla. 4th DCA 2013).

In allocating $502,279.00 in rental income assets to the former wife, the trial' court did not cite any supporting evidence in the record or explain the basis for this substantial amount (or either of the two component amounts). The record does not otherwise disclose the source or reliability of this amount. These omissions render it impossible to conduct meaningful appellate review as to whether competent substantial evidence supports the determination that the former wife received and fraudulently conveyed, transferred, and/or hid $502,279.00 in proceeds from the rental properties. Furbee v. Barrow, 45 So.3d 22, 24 (Fla. 2d DCA 2010).

We therefore reverse the equitable distribution scheme in the supplemental final judgment and remand for the trial court to make additional findings of fact explaining the evidentiary source of the amount allocated to the former wife as rental income. Harrell v. Harrell, 947 So.2d 638, 639 (Fla. 4th DCA 2007). The trial court may revisit any other related financial issue to the extent that it is affected by any changes in the equitable distribution plan. Santiago v. Santiago, 51 So.3d 637, 639 (Fla. 2d DCA 2011).

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Crispen HART, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2244.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.

      Crispen Hart, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). This disposition is without prejudice to petitioner filing a subsequent petition if necessary in the future.

PADOVANO, THOMAS, and ROBERTS, JJ., concur.


text:
    Thomas GROSS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2656.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.
    Thomas Gross, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying motion for postconviction relief rendered December 19, 2013, in Duval County Circuit Court case number 16-2009-CF-009828-AXXX-MA 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.

PADOVANO, THOMAS, and ROBERTS, JJ., concur.