text:
    Raul DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-619.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   EMAS, J.

Raul Diaz was arrested and charged with assault of his stepdaughter, resisting an officer with violence, and battery on a law enforcement officer. Following a trial, Diaz was convicted of the three crimes charged. Diaz appeals from his conviction, and, for the reasons that follow, we affirm in part and reverse in part.

At trial, the State presented two 911 calls. In the first call, the caller (Diaz’s stepdaughter, Rachel Llerena) told the 911 operator that:

• Her stepfather had been drinking and was outside the house, throwing something at her car;

• Diaz was not armed;

• Llerena was inside the house and able to lock the doors; and

• No one in the house was in immediate danger.

The 911 operator told Llerena to remain in the house and that police were being dispatched. Approximately fifteen minutes later, Llerena called 911 again. In the second call, Llerena told the 911 operator:

• Her stepfather broke one of the windows to the house and was destroying her car outside;

• There were three people in the house: Llerena, Llerena’s mother and Llerena’s daughter;

• Her stepfather was drunk and threatening them, but the door to the house was locked and he was outside of the house;

• She did not believe that her stepfather had his house key in his possession;

• Her stepfather said the police would have to kill him; and

• A weight which Diaz had earlier thrown at Llerena’s car was no longer outside of the house.

The State introduced into evidence pictures of the broken window, depicting a broken center pane with jagged glass. The State then called Officer Fernandez, who testified that she had spoken with Llerena at the time of the incident upon being dispatched to the house. Officer Fernandez identified the voice on the 911 calls as that of Rachel Llerena, Diaz’s stepdaughter. The statements made and events described by Llerena in the two 911 calls occurred prior to the police officers’ arrival on the scene.

Thereafter, the State and defense witnesses gave very different versions about the sequence of events that occurred upon the police officers’ arrival at the house. The State relied on the testimony of Officers Perez and Janvier who were dispatched separately to the house. The officers each testified that they approached the house together, and that Diaz was outside the house and began yelling at, and walking towards, the officers when they arrived. After a couple of requests for a pat-down, Diaz complied and put his hands on a parked car. Halfway through the pat-down, Diaz turned abruptly. A scuffle ensued and Diaz punched one of the officers. Diaz began to run and was eventually subdued with a taser. The officers did not take statements from any of the neighbors who had witnessed the incident.

Two of Diaz’s neighbors, Anna Alamo and Humberto Gonzalez, testified for the defense. They each testified that Diaz was by the front door talking to his wife (who was inside the house) when the police drove up to the scene. Diaz was not yelling, and nothing seemed out of the ordinary. Both Alamo and Gonzalez testified that only one police car — and only one officer — initially arrived at Diaz’s house. The defense witnesses said there did not appear to be any confrontation or shouting between Diaz and the first police officer. Diaz submitted to a pat-down, at which point a second police car arrived. Both witnesses testified that as soon as the second officer got out of his car, that officer began yelling at Diaz. Diaz turned toward the first officer and asked something in Spanish, to the effect of “what’s the matter with him?” The first officer stepped back and the second officer tased Diaz. Diaz did not run or scream, nor did he hit either of the officers. After Diaz was tased, the two officers took him to the ground. Alamo testified that the first officer refused her attempts to speak with him, and no officer ever interviewed her about what she had witnessed.

During closing argument, the defense emphasized that the sole evidence of the assault was the 911 recording and highlighted to the jury that no one from inside the house had testified at the trial. In rebuttal, the prosecutor argued that if Rachel Llerena had been present, she would have simply corroborated the things she said during the 911 call:

STATE: Now, I’ll ask you, if I had actually brought Rachel Llerena here today, how much stronger do you think the state’s case would have gotten? She would have told you exactly the same things that’s on the 911 call. Only the 911 call, I submit to you, is better because that’s her in the moment, it’s not her thinking on the witness stand. (Emphasis added).

The defense objected, noting that, by this argument, the State improperly told the jury that it knew what the witness would have done or said had she appeared and testified at trial. The court overruled the objection. After closing, the defense moved for mistrial on the grounds that the prosecutor told the jury that a non-testifying witness would have corroborated the State’s case and evidence had she testified. The court denied the motion for mistrial. Subsequently, Diaz was convicted of assault, resisting an officer with violence, and battery on a law enforcement officer. This appeal followed.

A trial court’s rulings regarding the propriety of comments made during closing argument are reviewed for an abuse of discretion. Braddy v. State, 111 So.3d 810, 837 (Fla.2012)(citing Salazar v. State, 991 So.2d 364, 377 (Fla.2008)). The overruling of defense counsel’s objection to an improper prosecutorial argument that should have otherwise been sustained is reviewed for harmless error. Braddy, 111 So.3d at 837.

A “prosecutor must confine his/ her closing argument to evidence in the record and must not make comments which could not be reasonably inferred from the evidence.” Hazelwood v. State, 658 So.2d 1241, 1244 (Fla. 4th DCA 1995). He may not “suggest that evidence which was not presented at trial provides additional grounds for finding the defendant guilty.” Servis v. State, 855 So.2d 1190, 1194 (Fla. 5th DCA 2003). Further, it is improper for “a prosecutor [to] suggest during closing argument that there are other witnesses who would corroborate the state’s case had they been called to testify.” Hazelwood 658 So.2d at 1244. As the Florida Supreme Court previously acknowledged:

A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and nonrecord evidence:
The role of the attorney in closing argument is “to assist the jury in analyzing, evaluating and applying the evidence. It is not for the purpose of permitting counsel to ‘testify’ as an ‘expert witness.’ The assistance permitted includes counsel’s right to state his contention as to the conclusions that the jury should draw from the evidence.” United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978) (emphasis in original). To the extent an attorney’s closing argument ranges beyond these boundaries it is improper. Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty.
It is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government’s attorney or the sanction of the government itself as a basis for conviction of a criminal defendant.
The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government’s vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.

Ruiz v. State, 743 So.2d 1, 4 (Fla.1999)(quoting Hall v. United States, 419 F.2d 582, 583-84 (5th Cir.1969) and citing United States v. Garza, 608 F.2d 659, 662-62 (5th Cir.1979)).

In the instant case, the State improperly argued that the non-testifying victim would have testified “to exactly the same things” she said in her 911 calls, and the trial court erred in overruling the objection to this improper argument. Though defense counsel’s argument in closing (that the 911 calls were the only evidence of the assault and the State failed to call any witness who was inside the house) may have opened the door to a fair reply, the State, in commenting on what a non-testifying witness would have said and how that non-testifying witness would have corroborated its case, went beyond fair reply, went outside the evidence, and asked the jury to accept the prosecutor’s assurance that there existed extra-record evidence to corroborate that which the jury heard during the trial.

On appeal, the State concedes that this argument was improper and that the objection should have been sustained; the State contends, however, that that the error was harmless. We do not agree. In this case, the two 911 calls served as the sole evidence to establish the assault charge. The prosecutor’s argument that Llerena, if called to testify, would have reaffirmed everything in those calls, was more than an improper comment on the accuracy and truthfulness of the contents of the 911 tape. It was an argument which reasonably would lead the jury to believe that there is other evidence, unknown or unavailable to the jury, upon which the prosecutor was convinced of the accused’s guilt. See Thompson v. State, 318 So.2d 549, 552 (Fla. 4th DCA 1975). See also Williamson v. State, 459 So.2d 1125 (Fla. 3d DCA 1984). The State has failed to carry its burden of demonstrating that this improper argument was harmless beyond a reasonable doubt as to the assault. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986)(noting it is the State’s burden, “as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict -or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”) We therefore reverse and remand for a new trial on the assault charge.

We reach a different result, however, with regard to the remaining charges of resisting an officer with violence and battery on a law enforcement officer. The contents of the 911 calls were relied upon to establish the assault charge, and the events described during those calls all took place before the officers arrived on the scene. The 911 calls (and thus the improper closing argument regarding the calls and Llerena) related to the jury’s assessment of the evidence regarding the assault charge, not the charges of resisting an officer with violence and battery on a law enforcement officer.

While those offenses occurred shortly after the assault, they involved evidence and witnesses which were distinctly separate from the evidence relating to the assault. The 911 calls did not describe any of Diaz’s interaction with the police officers, or any events which took place following their arrival. The resisting and battery charges pitted the testimony of the two police officers against the contrasting testimony of the two neighbors, requiring no consideration of the contents of the 911 calls or the prosecutor’s improper argument at closing. Based upon our review of the evidence presented at trial and the entirety of the record, we conclude that the State has demonstrated beyond a reasonable doubt that the improper closing argument did not contribute to the jury’s verdicts for these two charges, and we therefore affirm those convictions and sentences.

Affirmed in part, reversed in part, and remanded for a new trial on the charge of assault.

      .We recognize that the facts are somewhat unique in that the 911 caller and the non-testifying witness were one and the same person. The State’s argument to the jury that Llerena "would have told you exactly the same things that's on the 911 call” was nevertheless improper. There is simply no way of knowing whether Llerena’s trial testimony would have coincided with, conflicted with, or recanted altogether what she said in the 911 calls. By its improper closing argument, however, the State created the clear impression to the jury that the State knew precisely what Llerena would have said had she been called to testify, and that she would have reaffirmed all the statements she made and events she described in the 911 calls. It was certainly reasonable for the jury to infer that this argument was based upon knowledge and information outside the record evidence presented at trial.

      . It is established, however, that "where defense counsel comments upon the state's failure to call a witness who is demonstrably competent and available, a reply by the prosecuting attorney that the defense has the same ability to put on the witness does not prejudice the defendant’s right to a fair trial.” Hazelwood, 658 So.2d at 1243.

      . We reject Diaz’s claim that the evidence was legally insufficient to establish the crime of assault. See Rogan v. State, 203 So.2d 24 (Fla. 3d DCA 1967).


source: Caselaw Access Project

author: SHEPHERD, C.J.

license: Public Domain

text:
    Michael Mose POOLE, Petitioner, v. SOUTH DADE NURSING & REHABILITATION CENTER and the State of Florida, Respondents.
    No. 3D14-227.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.

      Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for petitioner.
    Quintairos, Prieto, Wood & Boyer, and Thomas A. Valdez, and Antwon E. Emery, Tampa, for South Dade Nursing & Rehabilitation Center; Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for the State of Florida, respondents.
    Before SHEPHERD, C.J., and FERNANDEZ and EMAS, JJ.
   SHEPHERD, C.J.

Michael Mose Poole, the defendant in this criminal action, petitioned for a writ of certiorari seeking review of an order directing the clerk to unseal reports filed by psychiatrists who determined him to be incompetent to proceed to trial. After expedited briefing and argument in the matter, we denied the petition by an unpublished order, indicating an opinion would follow. We now explain our decision.

Factual and Procedural Background

Poole was arrested and charged with the murder of Robert Lee Verser, Sr., with whom Poole shared a room at South Dade Nursing & Rehabilitation Center. On April 10, 2013, the nursing staff found Verser in his bed, apparently beaten to death. The staff later located Poole, sitting in an outside patio, with blood-stained hands, shirt and pants. The public defender appointed to represent Poole on the criminal charges requested a competency evaluation from Dr. Sonia Ruiz. Dr. Ruiz provided counsel with a written report which concluded that Poole was not competent to proceed to trial.

At Poole’s arraignment, the public defender moved for competency examinations pursuant to Florida Rule of Criminal Procedure 3.210. In support of his motion, counsel provided the trial court and the State with a copy of Dr. Ruiz’ report. In accordance with established local court procedures, the clerk filed Dr. Ruiz’ report under seal. The trial court then ordered further evaluations by Dr. Harry Damus and Dr. Sandra M. Klein, both of whom concurred with Dr. Ruiz’ opinion. Their reports were also filed under seal. The trial court found Poole incompetent to proceed to trial and committed him to a forensic hospital.

On January 21, 2014, South Dade Nursing requested that Poole’s competency evaluation reports be unsealed. Counsel for South Dade Nursing informed the court that Verser’s estate served a 75-day pre-suit notice of claim on it pursuant to section 400.0233 of the Florida Statutes, and access to the sealed reports was needed to evaluate its potential liability on the claim. Poole objected to disclosure of the reports on the ground they were confidential. Poole also questioned the relevancy of the reports to a civil negligence claim, because the doctors only evaluated his competency to stand trial and not his mental state at the time of the alleged crime. After reviewing the competency reports and holding a hearing, the trial court found the reports to be relevant and ordered them unsealed. Poole then petitioned this court for certiorari review of the trial court’s ruling.

Analysis

Poole contends the trial court departed from the essential requirements of law by allowing a private, non-party access to confidential medical records. The primary thrust of his argument on this point is that Florida Rule of Criminal Procedure 3.211(d) expressly directs all information garnered in determining a criminal defendant’s competency to stand trial be kept confidential. The trial court disagreed and ordered the reports released to South Dade Nursing, relying on Florida Rule of Judicial Administration 2.420. Bearing in mind our obligation to harmonize seemingly contradictory rules where possible, see, e.g., City of Miami v. Valdez, 847 So.2d 1005, 1008 (Fla. 3d DCA 2003), we consider the language and purpose of both rules.

1. Rule 3.211.

In 1980, the Florida Supreme Court adopted Florida Rules of Criminal Procedure 3.210 to 3.219 to establish procedures for determining a defendant’s mental competency during a criminal case. Fla. Bar re Rules of Criminal Procedure, 389 So.2d 610 (Fla.1980). Rule 3.210 prohibits proceeding, at any material stage of the case, against a person accused of a crime who is mentally incompetent. Fla. R. Crim. P. 3.210(a). Upon reasonable grounds to believe the defendant may be incompetent, raised by defense counsel, the prosecutor, or the court itself, the court may order that defendant be examined by up to three experts. Fla. R. Crim. P. 3.210(b). Rule 3.211 sets forth the scope of the examinations and provides for written findings by the experts. Subsection (d) of rule 3.211 limits the use of the reports generated. It reads as follows:

(d) Limited Use of Competency Evidence
(1) The information contained in any motion by the defendant for determination of competency to proceed or in any report of experts filed under this rule insofar as the report relates solely to the issues of competency to proceed and commitment, and any information elicited during a hearing on competency to proceed or commitment held pursuant to this rule, shall be used only in determining the mental competency to proceed or the commitment or other treatment of the defendant.
(2) The defendant waives this provision by using the report, or portions thereof, in any proceeding for any other purpose, in which case disclosure and use of the report, or any portion thereof, shall be governed by applicable rules of evidence and rules of criminal procedure. If a part of the report is used by the defendant, the state may request the production of any other portion of that report that, in fairness, ought to be considered.

(Emphasis added.) Poole urges that the word “only” in this rule means what it says — that the reports, over which a criminal defendant has no choice as to creation, may be used for no purpose other than determining the defendant’s competency to stand trial in a criminal proceeding.

Poole supports his argument by reference to Caraballo v. State, 39 So.3d 1234 (Fla.2010). Caraballo concerned the State’s use of competency evidence to rebut allegations of mental retardation during the penalty phase of a criminal case. The Court reasoned such use was precluded by rule 3.211(d) because:

“As a result of the court’s obligation to ensure that the material stages of a prosecution not proceed against a criminal defendant while the defendant is mentally incompetent, any defendant may be subjected to mandatory competency evaluation and, consequently, subjected to the risk of saying something or responding in a manner that is detrimental to or incriminates the defendant.”

Id. at 1252-53. Poole argues by analogy that the use of the reports of his competency likewise are barred from use by third parties.

We believe Poole reads rule 3.211(d) too broadly. In the first place, subsection (d) appears in the Florida Rules of Criminal Procedure. The 1980 Committee Notes reveal this subsection [then denominated as subsection (e) ] was intended to “provide[] for the confidentiality of the information obtained by virtue of an examination of the defendant.” In 1988, the second paragraph of subsection (d) was “expanded to clarify under what circumstances the reports of experts in a competency evaluation may be discovered by the prosecution and used as evidence.” In re Amendments to Fla. R. of Crim. P., 536 So.2d 992, 997 (Fla.1988) (emphasis added). We doubt the drafters had in mind the use of the reports outside the criminal arena.

Similarly, it is apparent to us from a study of the Caraballo opinion, upon which Poole places substantial reliance, that the central concern of that case was the protection of the defendant’s constitutional rights — there, the constitutional right against self-incrimination. Caraballo supports our view that the focus of section 3.211(d) is criminal in its emphasis. If there is any doubt in our mind about this conclusion, it was resolved in 2011 when, post-Caraballo, the Florida Supreme Court Rule amended rule 3.211 and other closely related rules, to provide “The procedure for determinations of the confidential status of reports is governed by Rule of Judicial Administration 2.420.” In re Implementation of Comm. On Privacy & Ct. Records Recommendations, 78 So.3d 1045, 1052 n. 25 (Fla.2011). It is to that rule that we now turn, as did the trial court, to decide this case.

2. Rule 2.120.

Rule 2.420 is a judicial administration rule governing the public’s access to court records. The rule distinguishes between two types of potentially confidential court records: those automatically designated confidential, and those which the court may determine to be confidential. Fla. R. Jud. Admin. 2.420(d)(1)(A), (B); see In re Amendments to Fla. Rule of Jud. Admin. 2.120 & Fla. Rules of App. P., 31 So.3d 756, 765 (Fla.2010). Subdivision (d)(1)(A) of rule 2.420 designates as automatically confidential those records listed in subdivisions (c)(1) through (c)(6). These records include trial and appellate court memoran-da relating to cases, draft orders and opinions, memoranda or advisory opinions that require confidentiality to protect compelling governmental interests such as court security, complaints alleging misconduct by judges until probable cause is established, and the like. Subdivision (d)(1)(B) designates as confidential those judicial records listed in subdivisions (c)(7) and (c)(8) of rule 2.420, but only insofar as they were confidential under section 119.07 of the Florida Statutes or Article I, section 24 of the Florida Constitution (commonly referred to as Florida’s Sunshine Law) as of the date of adoption of rule 2.420, with the exception of those records contained within a “finite set” of nineteen categories within the two subdivisions. Rule 2.420 provides for a mechanism for a filer to seek a judicial determination of confidentiality as to subdivision (c)(7) and (c)(8) records that do not fall within the nineteen categories listed in the rule. Rule 2.420(e), (0, (g).

Reports filed in connection with a criminal defendant’s evaluation of competency to stand trial are not included within either the mandatory confidentiality provisions of subdivision (d)(1)(A) or within any of the finite set of nineteen exemptions in subsection (d)(1)(B) of the rule. In 2011, the Florida Supreme Court amended rule 2.420 to add presentence investigation reports and corresponding psychological or psychiatric evaluations to the subsection (d)(1)(B) list, but the Court expressly rejected a recommendation that all mental health evaluations be included in the category. See In re Amendments to Fla. Rule of Jud. Admin. 2.4-20, 68 So.3d 228, 230 (Fla.2011) (“The proponents of adding all mental health evaluations and reports filed in a criminal case to the subdivision (d)(1)(B) list acknowledge that the statutes relied upon for their inclusion do not clearly express that those evaluations and reports are confidential in the context of public access to court records. Therefore, we ... add only PSIs and any psychological or psychiatric evaluations attached to PSIs to subdivision (d)(1)(B).” (footnotes omitted)). The Court also expressly disapproved of local administrative court rules which authorized clerks to seal mental health evaluations pending a judicial determination. Id. at 230 (“Rule 2.420 provides the procedures for sealing court records. And ... permitting local introduction of blanket exemptions to the rule would undermine the uniform procedures adopted by the Court .... ”). Thus, in this case, the trial court correctly determined that the clerk should not have automatically sealed Poole’s competency reports upon filing.

For judicial records not automatically designated confidential, subsections (e), (f) and (g) establish the procedures to be used to determine confidentiality of the record. In criminal cases, a motion may be filed by “the state, the defendant or an affected non-party” to seek confidentiality of such a document. Rule 2.420(f)(1). The trial court must hold a hearing within 30 days of the filing of the motion and issue a written ruling 30 days thereafter. Rule 2.420(e)(2). In granting the motion, the trial court must identify the subdivision (c) grounds for determining the information to be confidential, must ensure the degree, duration and manner of maintaining confidentiality are no broader than necessary to protect the records, and must state that no less restrictive measures are available for the purpose. Rule 2.420(e)(3). In this case, had the clerk not automatically sealed the competency evaluation reports upon filing, this would have been the proper procedure for the trial court to determine whether the reports were confidential. Instead, South Dade Nursing moved to unseal the records under rule 2.420(e)(5), which states in pertinent part:

If a nonparty requests ... that the court order the unsealing of records designated as confidential under subdivision (d), the request must be made by a written motion, filed in that court, that states with as much specificity as possible the bases for the motion- Except when a motion filed under this subdivision represents that all parties and affected non-parties agree to all of the relief requested, the court must, as soon as practicable but no later than 30 days after the filing of a motion under this subdivision, hold a hearing on the motion. ... The court must issue a ruling on the motion within 30 days of the hearing.

3. Privacy

Poole finally contends the competency reports are medical records entitled to confidentiality under Article I, section 23 of the Florida Constitution, commonly referred to as Florida’s Right to Privacy Law, and Chapter 456 of the Florida Statutes. We agree with the trial court that neither mandate confidentiality of the competency reports in this case.

Both the constitutional right to privacy and section 456.057 protect against disclosure of a patient’s medical records without the patient’s consent. § 456.057(7)(a), Fla. Stat. (2013) (“[R]ecords may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient’s legal representative, or other health care practitioners and providers involved in the patient’s care or treatment, except upon written authorization from the patient.”); State v. Johnson, 814 So.2d 390, 393 (Fla.2002) (“A patient’s medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution....”). Therefore, the question is whether a criminal defendant ordered to undergo a competency examination may be considered a patient. Definitions of “patient” generally involve the act of submitting to care and treatment rather than simply evaluation. See generally Art. 10, § 25, Fla. Const. (“The term ‘patient’ means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment ... by a health care provider.”); § 394.455(20), Fla. Stat. (2013) (“Patient’ means any person who is held or accepted for mental health treatment.”); Black’s Law Dictionary 1241 (9th ed.1979) (“patient, n. A person under medical or psychiatric care.”).

In forensic examinations, the person being examined is not seeking care and treatment. In Miami Herald Publishing Company v. Chappell, 403 So.2d 1342, 1344-45 (Fla. 3d DCA 1981), this court ruled that a criminal defendant involved in a pretrial competency hearing is not a patient entitled to the confidentiality provisions of chapter 394, Florida’s Mental Health Act, also known as the “Baker Act.” Similarly, the Florida Rules of Civil Procedure provide for a party to submit to examination by a qualified expert, with a report of the examination made available to the other party notwithstanding any issue of confidentiality. Fla. R. Civ. P. 1.360. For the same reason, “communications made in the course of a court-ordered examination of the mental or emotional condition of the patient” are excluded from Florida’s psychotherapist-patient privilege. § 90.503(4)(b), Fla. Stat. (2013).

In the instant case, the physicians were consulted for purposes of examinations only, not for treatment. The purpose behind the examinations was to assist, the court in determining whether the defendant was capable of participating in the criminal process. Any reports resulting from such an examination are intended to be communicated outside the patient-physician relationship. Thus, they are not the type of patient’s medical record generally entitled to confidentiality protection.

Petition denied.

      . Because the pre-suit investigatory period on the civil claim expired on February 17, 2014, we expedited our review and issued an order denying the petition for writ of certiorari on February 13, 2014.

      . Subsections (c)(7) and (c)(8) encompass, inter alia, records made confidential by the Florida Constitution, United States Constitution, Florida Statutes, rules and case law.

      . Rule 2.420 (originally 2.051) was adopted on October 29, 1992. In re Amendments to the Fla. Rules of Jud. Admin., 608 So.2d 472 (Fla.1992).

      .These categories include Chapter 39 records relating to dependency matters, termination of parental rights, guardians ad litem, child abuse, adoption records, HIV test results, test results and identity within test results of sexually transmitted diseases when provided by the Florida Department of Health, and identifying information in clinical records of detained criminal defendants found incompetent to proceed or acquitted by reason of insanity. Rule 2.420(d)(1)(B)(i) through (xix) (2010).

      . Subsection (f), governing court records in criminal records, incorporates by reference subsection (e).

      . Because, under the statutorily mandated progression, (c)(7) and (c)(8) records would be subject to a judicial determination of confidentiality before filing, this subdivision exempts such records from the unsealing process.


author: SLEET, Judge.

text:
    Roxany A. GONZALEZ DEL REAL, Appellant, v. Victor Tomas Gonzalez DEL REAL, Appellee.
    No. 2D12-6044.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
    Alison B. Copley of Law Offices of Alison B. Copley, P.A., Sebring; and Cynthia L. Greene of Law Offices of Greene Smith & Associates, P.A., Miami, for Appellant.
    No appearance for Appellee.
   SLEET, Judge.

Roxany Gonzalez Del Real, the former wife, appeals the final judgment of dissolution of marriage entered on November 1, 2012. She raises two issues on appeal. We affirm the first issue without further comment; however, we write to address the second issue. The former wife argues that the trial court erred in failing to award her a future credit for the expenses she will pay on the taxes, insurance, and maintenance of the parties’ marital home during her exclusive use and possession. Because it is unclear whether the trial court considered the factors set forth in section 61.077, Florida Statutes (2012), we reverse and remand for findings consistent with this opinion.

The final judgment awards the former wife temporary use and possession of the marital residence until the parties’ minor child reaches the age of majority. The final judgment also requires the former wife to pay all taxes and insurance on the marital residence. However, the final judgment is silent as to whether the former wife is entitled to any credits or set-offs on the sale of the home.

Section 61.077 provides, in part:

A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties’ settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale.

The statute then lists the factors the trial court must consider in determining the issue. Because there is no transcript, and because the trial court did not explain its findings after the former wife moved for rehearing, we are unable to determine what factors, if any, the trial court relied upon in addressing the former wife’s entitlement to any credits or setoffs for the payment of taxes, insurance, and maintenance of the parties’ marital home during her exclusive use and possession. Therefore, we remand for the trial court to address the issue of whether the former wife is entitled to any credits or setoffs upon the sale of the marital home. See Silverman v. Silverman, 940 So.2d 615, 618 (Fla. 2d DCA 2006) (remanding for the trial court to address whether the former wife was entitled to credits and setoffs in accordance with section 61.077); Holitzner v. Holitzner, 920 So.2d 827, 828 (Fla. 4th DCA 2006).

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

ALTENBERND and KHOUZAM, JJ., Concur.


author: PER CURIAM.

text:
    Jeremy SAWYER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5854.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
   PER CURIAM.

Affirmed. See § 921.0024(2), Fla. Stat. (2009); Almendares v. State, 916 So.2d 29 (Fla. 4th DCA 2005); Pruitt v. State, 801 So.2d 143 (Fla. 4th DCA 2001).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Michael SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5873.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
   PER CURIAM.

Affirmed. See Howard v. State, 11 So.3d 967 (Fla. 2d DCA 2008); State v. Richards, 639 So.2d 680 (Fla. 2d DCA 1994).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Danny Lewis CONKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5895.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Leroy JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5938.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
    Leroy Jackson, pro se.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Teal v. State, 862 So.2d 871 (Fla. 2d DCA 2003); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Schneider v. State, 788 So.2d 1073 (Fla. 2d DCA 2001); Greenlee v. State, 591 So.2d 310 (Fla. 2d DCA 1991); Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008); Clayton v. State, 904 So.2d 660 (Fla. 5th DCA 2005); Reed v. State, 880 So.2d 1269 (Fla. 3d DCA 2004); Sampson v. State, 832 So.2d 251 (Fla. 5th DCA 2002); LaMar v. State, 823 So.2d 231 (Fla. 4th DCA 2002); Martell v. State, 676 So.2d 1030 (Fla. 3d DCA 1996).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Wendell CARSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5950.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
   PER CURIAM.

Affirmed. See Leone v. State, 643 So.2d 1198 (Fla. 5th DCA 1994).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Clarence GARVIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6004.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
    Clarence Garvin, pro se.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Collins v. State, 97 So.3d 305 (Fla. 4th DCA 2012); Foss v. State, 24 So.3d 1275 (Fla. 5th DCA 2009); Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009); Williams v. State, 925 So.2d 427 (Fla. 3d DCA 2006).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Richard V. BIAMONTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6093.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
   PER CURIAM.

Affirmed. See State v. Richardson, 915 So.2d 86 (Fla.2005); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Teal v. State, 862 So.2d 871 (Fla. 2d DCA 2003); Greenlee v. State, 591 So.2d 310 (Fla. 2d DCA 1991); Middleton v. State, 721 So.2d 792 (Fla. 3d DCA 1998).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Michael A. HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6098.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
    Michael A. Hicks, pro se.
   PER CURIAM.

Affirmed. See McLaughlin v. State, 721 So.2d 1170 (Fla.1998); DuBoise v. State, 520 So.2d 260 (Fla.1988); Wheeler v. State, 898 So.2d 1052 (Fla. 2d DCA 2005); Jordan v. State, 103 So.3d 253 (Fla. 4th DCA 2012); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998); Cotton v. State, 395 So.2d 1287 (Fla. 1st DCA 1981).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Juan BANDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6142.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
   PER CURIAM.

Affirmed. See Ratliff v. State, 914 So.2d 938 (Fla.2005); Enriquez v. State, 885 So.2d 892 (Fla. 3d DCA 2004).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Timothy DAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6169.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
    Timothy Day, pro se.
   PER CURIAM.

Affirmed. See State v. King, 426 So.2d 12 (Fla.1982); Day v. State, 134 So.3d 959 (Fla. 2d DCA 2014) (table decision); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Ronald BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6180.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
   PER CURIAM.

Affirmed. See Johnson v. State, 974 So.2d 363 (Fla.2008); Harris v. State, 818 So.2d 567 (Fla. 2d DCA 2002); Hinson v. State, 57 So.3d 865 (Fla. 1st DCA 2011); McCutcheon v. State, 44 So.3d 156 (Fla. 4th DCA 2010); Brown v. State, 10 So.3d 1197 (Fla. 1st DCA 2009).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Kenneth Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1295.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
    Kenneth Lee Williams, pro se.
   PER CURIAM.

Affirmed. See Baker v. State, 878 So.2d 1236 (Fla.2004); State v. King, 426 So.2d 12 (Fla.1982); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); State v. Broom, 523 So.2d 639 (Fla. 2d DCA 1988); Branch v. State, 990 So.2d 585 (Fla. 3d DCA 2008); Thier v. State, 967 So.2d 259 (Fla. 3d DCA 2007); Broom v. State, 907 So.2d 1261 (Fla. 3d DCA 2005).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Terry YARGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-230.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
   PER CURIAM.

Affirmed. See Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008); Johnson v. State, 917 So.2d 1011 (Fla. 4th DCA 2006); Clayton v. State, 904 So.2d 660 (Fla. 5th DCA 2005); State v. Newmones, 765 So.2d 860 (Fla. 5th DCA 2000).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Jessica Batres DE COLLIA, et al., Appellants, v. YELLOW CAB COMPANY, et al., Appellees.
    No. 3D13-1343.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.
    Jay M. Levy; Chavez & De Leon and John De Leon, for appellants.
    Michael S. Kaufman; John M. Bernazzo-li (Hollywood), for appellees.
    Before SHEPHERD, C.J., and ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); see also Powell v. Madison Cnty. Sheriff’s Dep’t, 100 So.3d 753 (Fla. 1st DCA2012).


author: KELLY, Judge.

text:
    Bernard A. STOREY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4583.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
    J. Andrew Crawford, St. Petersburg, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Bernard A. Storey appeals from the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief following an evidentiary hearing. In his motion, Storey sought to withdraw his plea of guilty to violation of probation alleging that he was incompetent when he entered the plea. The trial court originally summarily denied the motion, but we held on appeal that Storey’s motion alleged a claim of incompetency sufficient to require an evidentiary hearing to determine whether his admission to violating his probation was voluntary. Storey v. State, 32 So.3d 105, 107 (Fla. 2d DCA 2009).

At the hearing on remand, Storey presented evidence to indicate he was not mentally competent at the time he entered his plea. A police officer who encountered Storey approximately two weeks prior to the plea hearing characterized Storey as disoriented and “[mentally] [v]ery out of it.” Although the officer had no basis to involuntarily commit Storey, he was so concerned with Storey’s behavior that he took him to a mental health facility. However, despite Storey’s willingness to go to the facility, he did not remain there and was later observed acting inappropriately at Tampa International Airport.

The defense’s mental health expert, Dr. McClain, concluded to a reasonable degree of psychological certainty that Storey was mentally incompetent on the day he entered his plea. Although she did not examine Storey at the time of the plea, she had the benefit of the transcript of the plea colloquy, Storey’s extensive mental health records, police reports including the incident at the Tampa airport, and Sto-rey’s jail and medical files. Based upon all this information, she diagnosed Storey as suffering from posttraumatic stress disorder, bipolar disorder, and alcohol dependence. Dr. McClain acknowledged that Storey has experienced periods of competency in structured settings. However, in her opinion, Storey’s brief period of incarceration prior to the plea hearing was insufficient to stabilize him as reflected by his continued bizarre behavior after the plea and his subsequent commitment to a crisis stabilization unit. The State offered no evidence to refute Dr. McClain’s testimony. The only testimony it presented was that of the attorney who represented Storey at the plea hearing. She stated that she had no knowledge of Storey’s bizarre behavior before the plea hearing and that had she been aware of it she would not have continued with the proceedings.

The postconviction court denied Storey’s motion finding the evidence insufficient to show that Storey’s plea was involuntary. We disagree. Nothing in the record before the trial court contradicts Dr. McClain’s testimony that Storey’s mental state at the time he entered his plea made him incapable of entering a knowing and voluntary plea. While a trial court is entitled to reject unrebutted expert testimony, it must offer a reasonable explanation for doing so, such as impeachment of the witness or conflict with other evidence. Coday v. State, 946 So.2d 988, 1005 (Fla.2006). In rejecting Dr. McClain’s testimony that Storey was not competent, the trial court explained that while Storey had a long history of mental illness, he had often been diagnosed as competent despite the fact that he was unmedicated for long periods prior to the evaluation:

Dr. McClain attributed this to a structured setting including regulated sleep and food, and the fact that the Defendant was receiving his blood sugar medications. The Court observes that at the time the Defendant entered his March 28, 2007 plea, he had been in the Pinel-las County Jail for ten days during which time he had no access to alcohol and his wake-up time and meals were regulated.
The weight of the evidence is not sufficient to show that the Defendant’s pleas were involuntary. It remains un-rejut-ed that under similar circumstances, not on medication or alcohol, and in a stable environment, the Defendant has been found competent.

(Emphasis supplied.) The trial court’s finding that Storey had been found competent under “similar circumstances” is not supported by the record and thus cannot support the trial court’s rejection of Dr. McClain’s opinion. The record shows that Storey had only been in a “controlled environment” for ten days before he entered his plea in this case, a significantly shorter period of time than the prior instances to which the trial court referred. In light of Storey’s extensive history of mental illness, his odd behavior immediately preceding and subsequent to the plea hearing, his inappropriate answers to questions during the plea colloquy, and the lack of any other evidence to indicate he understood the consequences of his plea, we cannot conclude that the trial court’s rejection of Dr. McClain’s testimony was reasonable. We therefore reverse the order denying Sto-rey’s motion and remand for entry of an order granting the motion and permitting him to withdraw his plea.

Reversed and remanded.

KHOUZAM and BLACK, JJ„ Concur.

      . By way of background, Storey’s case was argued in January 2012. Shortly before this court was going to issue this opinion, the State moved to dismiss Storey's appeal arguing that Storey had been deported in February 2012. In his two-page response to the motion, Storey argued that his appeal was not moot because "according to immigration law [Storey] can reopen his immigration case if an appellate court sets aside his violation of probation sentence as it was the cause of his removal from the United States." This assertion is not borne out by the immigration attorney's testimony Storey attached to his response. The attorney’s testimony shows that he mistakenly believed that Storey’s conviction and sentence upon revocation of his probation was dependent on his conviction for the underlying misdemeanor that gave rise to the violation. Because the county court set aside Storey’s guilty plea to that misdemeanor and the State later dismissed the charge. Sto-rey asserts that his conviction and sentence must necessarily fail, and after that he can try to reopen his deportation case. This does not take into account the reality that Storey can be found in violation of probation regardless of whether he was convicted of the underlying misdemeanor. Immigration counsel was not aware of this nor did he know that the misdemeanor conviction did not even occur until after Storey had already been found guilty of violating his probation and sentenced.
      Storey also argued that the appeal was not moot because it "has collateral legal consequences for [him], including a potential for reversal of his deportation order.” He did not say what those consequences were other than the "potential” reversal of the immigration order. He did cite a case indicating that a felony conviction can prevent readmission to the United States; however, Storey had already been convicted of a felony and was serving probation for that felony, something the withdrawal of his plea to the violation of that probation would not alter. In light of Storey’s response, this court determined that it was entirely speculative that its opinion would afford any meaningful relief to Storey. While this opinion will permit him to withdraw his plea, it will not prevent him from being convicted and sentenced based on his violation of probation, nor will it erase his earlier felony conviction. Additionally, in the past when the State has moved to dismiss based on deportation, this court has granted those motions without opposition. In response to our dismissal in this case, Storey successfully sought a writ of mandamus in the supreme court. Storey v. State, 133 So.3d 528 (Fla.2014). That court has ordered us to decide Storey’s case on the merits, apparently concluding that it is not moot.


text:
    Charles Thomas Edwards BISH, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-415.
    District Court of Appeal of Florida, Second District.
    May 28, 2014.
    Keith A. Peterson of the Law Offices of Peterson, Mulberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

Charles Thomas Edwards Bish appeals the final order, entered after an evidentia-ry hearing, that denies his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Bish raised three grounds for relief that challenged his conviction for failing to register as a sexual offender. Because Bish was not required to register as a sexual offender under section 943.0435, Florida Statutes (2009), we reverse the postconviction court’s order and remand for the court to vacate Bish’s judgment and sentence.

On October 23, 1992, Bish, who was seventeen at the time, was adjudicated delinquent for the offense of child rape in Washington and was required to register as a sexual offender. In 1997, Bish moved to Florida and registered as a sexual offender. He continued to register until 2009. In 2010, he was arrested for failing to register as a sexual offender from March 1, 2010, through April 15, 2010. Based on advice from counsel, he pleaded guilty and was placed on five years’ probation. On October 25, 2011, after violating probation, the circuit court revoked his probation and sentenced him to thirty months’ prison.

In his postconviction motion, Bish alleged that he was not required to register as a sexual offender because he was a juvenile at the time of the crime and, thus, could not be convicted of failing to register as a sexual offender under section 943.0435(1)(a)(1)(d). He argues that counsel was ineffective for advising him to plead guilty to a crime he could not have committed. In support of his motion, Bish attached a copy of a Florida Department of Law Enforcement (FDLE) letter dated March 29, 2012. In the letter, the FDLE cited State v. Williams, 75 So.3d 431 (Fla. 1st DCA 2011), and informed Bish that he was no longer required to register as a sexual offender and that his name had been removed from the registry. The postconviction court held a hearing on Bish’s motion and denied it on January 23, 2013.

We agree with the First District that only subparagraph d of section 943.0435(1)(a)(1) applies to juvenile offenders. Williams, 75 So.3d at 433. Here, although Bish was seventeen when he was adjudicated delinquent in Washington, he was not adjudicated on or after July 1, 2007, but in 1992. The State concedes that the postconviction court erred when it denied Bish’s motion because Bish was not required to register as a sexual offender. See Acevedo v. State, 108 So.3d 719 (Fla. 5th DCA 2013). Therefore, we reverse the postconviction court’s order and remand for the court to vacate Bish’s judgment and sentence.

Reversed and remanded with instructions.

ALTENBERND and KHOUZAM, JJ„ Concur.


author: ROTHENBERG, J.

text:
    AMS STAFF LEASING, INC., Appellant, v. OCHA ENGINEERING CORP., Appellee.
    No. 3D13-2735.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.

      Law Offices of Charles M-P George, and Charles M-P George, for appellant.
    Dieppa Law Firm, P.A., and Eduardo E. Dieppa III, Hialeah, for appellee.
    Before ROTHENBERG, SALTER, and SCALES, JJ.
   ROTHENBERG, J.

AMS Staff Leasing, Inc. (“AMS”) appeals an order denying its motion to dismiss the complaint of Ocha Engineering Corp. (“Ocha”) and to compel arbitration. Because we find AMS did not waive its right to compel arbitration, we reverse.

AMS and Ocha entered into a contract providing that AMS would provide Ocha with workers for a project in exchange for payment. One of those workers was injured while working at Ocha’s job site, and the worker sued both Ocha and AMS for workers’ compensation. The claim proceeded to the Office of the Judges of Compensation Claims (“OJCC”), where Ocha asserted a claim against AMS for indemnification of any workers’ compensation claims due to a provision in the parties’ contract. AMS responded by arguing that the OJCC only had subject matter jurisdiction over workers’ compensation claims, and, thus, the OJCC could not adjudicate the contract dispute. The OJCC agreed that it lacked subject matter jurisdiction, and it advised the parties they would have to litigate the indemnification claim in circuit court.

Shortly thereafter, Ocha filed a four-count complaint against AMS in Miami-Dade Circuit Court, claiming indemnification, breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty. AMS initially responded by filing a motion to dismiss Ocha’s complaint on the merits, but subsequently amended the motion to dismiss to assert AMS’s right to compel arbitration in Dallas, Texas, over any dispute arising out of the contract. The trial court found that AMS’s failure to raise its motion to compel arbitration at the OJCC and in its original motion to dismiss constituted a waiver of the right to compel arbitration. We disagree.

Florida law provides that a party waives its right to compel arbitration by taking actions inconsistent with that right, including active participation in a lawsuit governed by the arbitration clause. Houchins v. King Motor Co. of Fort Lauderdale, Inc., 906 So.2d 325, 328 (Fla. 4th DCA 2005); Hirschfeld v. Crescent Heights, X, Inc., 707 So.2d 955, 956 (Fla. 3d DCA 1998). However, Florida law also provides that filing a motion to dismiss based on the merits of the claim, in and of itself, does not rise to the level of active participation in a lawsuit sufficient to waive the right to compel arbitration. Houchins, 906 So.2d at 328; Hirschfeld, 707 So.2d at 956.

We similarly find that AMS did not waive its right to compel arbitration by filing its motion to dismiss for lack of subject matter jurisdiction in the OJCC. Indeed, AMS took the only action it could have taken in that scenario. A tribunal without subject matter jurisdiction, as was the OJCC in this case, is not only precluded from adjudicating the merits of the dispute, but also from entering orders regarding that dispute, including a motion to compel arbitration. See Cesaire v. State, 811 So.2d 816, 817 (Fla. 4th DCA 2002) (“[A]n order entered without subject matter jurisdiction is void.”). Thus, the OJCC could not have ruled on a motion to compel arbitration even if AMS had presented one. Filing a motion to dismiss for lack of subject matter jurisdiction before a court with no authority over the claim was not inconsistent with AMS’s right to compel arbitration; and failing to file a motion to compel arbitration before a tribunal with no authority to enter that order cannot constitute a waiver.

AMS took no actions inconsistent with its right to compel arbitration, and it did not actively participate in the litigation below before filing its motion to compel arbitration. We therefore find that the trial court erred by deciding AMS waived that right and by denying AMS’s motion to compel arbitration.

Reversed.

      . A motion to dismiss based on a contractual arbitration clause is to be treated as a motion to compel arbitration. Balboa Ins. Co. v. W.G. Mills, Inc., 403 So.2d 1149, 1150-51 (Fla. 2d DCA 1981).

      . We decline to address the remainder of Ocha’s arguments, as they are without merit.


author: EMAS, J.

text:
    Jorge LLERENA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1155.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   EMAS, J.

Jorge Llerena files this appeal, following a probation violation hearing, an order revoking probation, and sentence. Appellant’s only claim on appeal is that the written order revoking probation fails to conform to the trial court’s oral pronouncement made at the conclusion of the probation violation hearing.

Appellant was placed on probation for aggravated battery. While serving his probation, Appellant was arrested and charged with the crimes of conspiracy to traffic in cocaine and trafficking in cocaine, alleged to have been committed by Appellant while he was on probation. The State filed an affidavit of probation, which was later amended, alleging that Appellant violated his probation by: (1) committing the offense of conspiracy to traffic in cocaine; (2) possessing drugs or narcotics not prescribed by a physician; (3) failure to complete an anger management program; and (4) failure to complete an alcohol and drug treatment program.

The probation violation remained pending while a jury trial was held on the charges of conspiracy to traffic in cocaine and trafficking in cocaine. The trial judge presiding over the trial was the same judge who would hear the probation violation case. The parties agreed that the trial court could consider the evidence presented at trial as evidence of the violation of probation. It was further agreed that, following trial, the judge would hold a probation violation hearing, at which time the State and defense could present any other evidence with regard to the alleged violations of probation.

Following trial, Appellant was found guilty of conspiracy to traffic and trafficking in cocaine. At the subsequent probation violation hearing, the State elected not to present any additional evidence on the violation of probation, relying upon the evidence presented at trial and heard by the trial court. The defense presented no evidence at the probation violation hearing. The trial court orally found Appellant in violation of his probation for having committed the offense of conspiracy to traffic in cocaine. However, the written order of revocation included all four bases (described supra) contained in the amended violation of probation.

Based upon the State’s proper confession of error and our own review of the record, we affirm the revocation and sentence, but remand to the trial court for the sole purpose of entering an amended order of revocation that conforms to the trial court’s oral pronouncement that Appellant violated his probation by committing the offense of conspiracy to traffic in cocaine. See Harvey v. State, 129 So.3d 1165 (Fla. 3d DCA 2014) (noting that a written order revoking probation must conform to the court’s oral pronouncement made at the probation revocation hearing); Laffitte v. State, 16 So.3d 315 (Fla. 3d DCA 2009) (same). Appellant need not be present for this purpose.

      . The trial court also included, in its oral pronouncement, that Appellant violated his probation by committing the offense of trafficking in cocaine. Although the amended affidavit of violation of probation alleged conspiracy to traffic in cocaine, it failed to allege the additional offense of trafficking in cocaine, which therefore could not serve as a basis for revocation. Nadal v. State, 855 So.2d 257 (Fla. 3d DCA 2003); Mack v. State, 342 So.2d 562 (Fla. 2d DCA 1977).

      . Appellant does not challenge any other aspect of the violation hearing or the sufficiency of the evidence regarding the violation. Neither does he challenge the sentence imposed following the revocation of probation. Therefore, all that remains is the ministerial act of entering an amended written order which conforms to the court's oral pronouncement, for which Appellant’s presence is unnecessary.


text:
    Arthur W. FOLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-0627.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.
    Rehearing Denied June 19, 2014.
    Arthur W. Foley, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, EMAS and SCALES, JJ.
   PER CURIAM.

Appellant, Arthur W. Foley, appeals from the February 27, 2014, order denying his pro se motion for post-conviction relief. We affirm the order under review and order Foley to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his convictions, judgments, and sentences in circuit court case number 99-37608., Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any further filings relating to case number 99-37608 unless they have been reviewed and signed by an attorney who is a licensed member of The Florida Bar in good standing.

Additionally, absent a showing of good cause, any such further and unauthorized pro se filings by Foley will subject him to sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for consideration by it of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2013).

Affirmed; show cause order issued.

      . This case marks Foley’s twentieth pro se appeal or original proceeding with this court related to case number 99-37608.

      . The trial court also determined it necessary to issue a show cause order on Foley and subsequently entered an order on April 17, 2014, recommending sanctions be imposed against Foley. Not surprisingly Foley has appealed the April order to this court, which appeal is pending as Case Number 3D 14-1023.


author: PER CURIAM. EMAS, J,

text:
    Jeremy Marquise CARTER, Appellant, v. Angel C. PINO, Appellee.
    No. 3D13-66.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.
    Jeremy Marquise Carter, in proper person.
    Angel C. Pino, in proper person.
    Before LAGOA, EMAS, and LOGUE, JJ.
   PER CURIAM.

Affirmed.

LAGOA and LOGUE, JJ., concur.

EMAS, J,

concurring in part and dissenting in part.

Appellant and Appellee are both pro se in this appeal (and in the proceedings below). The trial court originally entered final judgment in favor of Appellant/Plaintiff below. Upon motion filed by Appel-lee/Defendant, the trial court set aside that final judgment. Appellant then moved for rehearing of the trial court’s order setting aside the final judgment. The trial court denied the rehearing and, in that same order, dismissed Appellant’s complaint with prejudice.

I concur with the majority’s affirmance of the trial court’s order denying Appellant’s motion for rehearing. However, I must respectfully dissent from the majority’s affirmance of that portion of the order which dismissed Appellant’s claim with prejudice. The order fails to set forth any factual or legal basis for its dismissal with prejudice, and this Court has no way of determining whether the dismissal with prejudice is premised, for example, on Appellant’s non-compliance with a prior order; a failure to state a claim (or failure to amend to state a claim); an abuse of the judicial process; or some other basis that might support the trial court’s exercise of its discretion. Further, the order itself indicates that the hearing was set only for the purpose of addressing Appellant’s motion for rehearing. There is nothing in the record below to suggest that Appellant was placed on notice that the trial court would also consider dismissal of the complaint at this hearing, much less a dismissal with prejudice. Rudimentary notions of due process require that we reverse that portion of the order dismissing the action with prejudice, with directions to reinstate the action.

I therefore respectfully concur in part and dissent in part.

      . There is no transcript of the hearing and, given Appellant's obligation to provide a proper and complete record, this would ordinarily be fatal to this appeal. However, in the instant case the pro se appellant was in prison and not present at the hearing (assuming that a hearing was actually held, rather than an order entered upon the papers). Whatever may have taken place at that hearing in Appellant’s absence, it is clear that Appellant was not placed on notice that dismissal with prejudice was one of the possible outcomes of the hearing. The trial court erred in sounding the death knell of the case without proper notice to Appellant and an opportunity to be heard on the issue. See Fla. R. Civ. P. 1.420(b); Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA 1982); Alexis v. Fla. Ins. Guar. Ass'n, 61 So.3d 487 (Fla. 4th DCA 2011); Viets v. Am. Recruiters Enters. Inc., 922 So.2d 1090 (Fla. 4th DCA 2006); Harris v. Filmon, 358 So.2d 905 (Fla. 2d DCA 1978).


author: WOLF, J. MAKAR, J.,

text:
    DJR, a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4859.
    District Court of Appeal of Florida, First District.
    May 29, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant, DJR, challenges the trial court’s order awarding restitution specifically as it pertains to three computers that he took from a school. He argues the trial court erred in granting restitution in the amount of the replacement value, rather than fair market value. We find that there was insufficient evidence to support the trial court’s award of replacement value for the three computers and reverse and remand for a new hearing.

The State has the burden to prove the amount of restitution by the greater weight of the evidence. See State v. Childers, 979 So.2d 412, 414 (Fla. 1st DCA 2008); § 775.089(7), Fla. Stat. Restitution must be proved by competent, substantial evidence. Childers, 979 So.2d at 414. We review a restitution order for an abuse of discretion. Id.

“Unless ‘special circumstances’ are shown, FMV [fair market value] (rather than replacement value) is the appropriate measure of damages in calculating restitution.” I.M. v. State, 917 So.2d 927, 934 (Fla. 1st DCA 2005) (citations omitted). See also State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991) (finding “in most instances the victim’s loss and the fair market value of the property at the time of the offense will be the same,” although “we can foresee instances when the market value of the property would not adequately reflect the victim’s loss or when the consideration of the percentage of depreciation would be inequitable”). “[T]he restitution amount may not exceed the damage the criminal conduct caused the victim.” Gilileo v. State, 923 So.2d 612, 614 (Fla. 2d DCA 2006).

Here, the trial court awarded restitution in the amount of replacement value based on the testimony of the school principal that the computers contained instructional materials that took teachers hours to generate, and which would take them hours to recreate. However, the principal was unable to testify as to how many teacher work hours were lost or to put a monetary value on those hours. Therefore, there was not competent, substantial evidence to support the trial court’s finding that the theft of the computers cost the school “literally hundreds, if not thousands, of teacher hours,” or that the State’s request for restitution in the amount of replacement value was “low” in light of the lost teacher hours. Therefore, we reverse the award of restitution as to the three contested computers and remand for a new hearing, at which the State may present evidence of the number and value of lost teacher hours. See S.M. v. State, 665 So.2d 335 (Fla. 1st DCA 1995) (reversing and remanding for a new restitution hearing on several items for which the amount ordered by the trial court was not adequately supported by the evidence presented).

REVERSED AND REMANDED.

LEWIS, C.J., concurs; MAKAR, J., specially concurring with opinion.

MAKAR, J.,

specially concurring.

This case is another in which a restitution victim — this time a public school system — must navigate the legal waters to establish its losses, ones that oftentimes are not recovered from juvenile offenders. After a hearing at which school officials testified, the trial court entered a net restitution order requiring D.J.R. to pay a total of $5,775 (in 231 monthly installments of $25) to replace electronic devices (eight computers, microphones, a metronome, and a digital camera), an acoustic guitar, and, among other items, a $2 bill that he stole from an elementary school. Adjustments were made for items recovered. The ripple effects of the theft deprived students and teachers of the benefit of the use and content of the computers for over nine months.

D.J.R. challenges only the portion of the award for three stolen computers, each having instructional and other educational materials that took teachers months of their time to prepare and save on the missing machines. These are “special circumstances” that justify using a replacement cost approach rather than fair market value because the latter would not account for the value of the lost content (the cost of commercial software is not at issue because the school’s vendor agreed to provide it on new computers at no extra cost).

The school relied upon the current replacement value for each computer as a rough proxy for the sum of each’s fair market value plus the value of lost content. Replacement values were $1,346, $1,541, and $1,132 for the three computers. Assuming that fair market value for the circa 2009 computers is at least $300 each (a number defense counsel offered from a cell phone search during the hearing), the actual amount at issue in this case is approximately $3,000, which represents a total replacement value of $4,019 (minus total fair market value of $900). This number represents the approximate value of the lost teacher-generated content on the computers, a number the school accepts but which D.J.R. contests.

While it is true that Principal Sanders gave no exact dollar amount to support the value of the lost computer content, she did say that teachers spent, at the very least, five hours per week on the computers over the time period they were in use — from about 2009 until early 2013 when the theft occurred — but she lacked an estimate of an hourly wage. This led the trial judge to conclude that “literally hundreds, if not thousands, of teacher hours” had been expended. Even at Florida’s current minimum wage of $7.93 (which is well below one estimate of the average starting teacher salary in Florida of $35,236), it seems apparent that the value of the lost teacher-generated content could easily exceed $3,000, which is why the trial judge concluded that the amount sought was “conservatively low” and entered the order at issue; and it is why remanding for a new hearing is a Pyrrhic victory for D.J.R. I concur because the restitution order should fully reflect the actual loss to the school in this case.

      . See Making Restitution Real: Five Case Studies on Improving Restitution Collection, The National Center for Victims of Crime (2011), http://www.victimsofcrime.org/docs/ ReportsándStudies/ 201 l_restitutionre-port_web.pdf?sfvrsn=2 (highlighting Project Payback, which is a juvenile restitution program started in Alachua County in the late 1990s that focuses on restorative justice by requiring and assisting juvenile offenders to get work, obtain job skills, and repay their victims' losses).

      . See 2012-2013 Average Starting Salaries by State, National Education Association, http: //www.nea.org/home/2012-2013-average-starting-teachersalary.html (last visited April 30, 2014).


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    Timothy Donnell GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5000.
    District Court of Appeal of Florida, First District.
    May 29, 2014.
    Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Timothy Donnell Green, who was convicted of aggravated battery with great bodily harm and with a weapon, two counts of false imprisonment, sexual battery with a firearm, and burglary of a dwelling with assault or battery, appeals his convictions and sentences and raises three issues, only one of which merits discussion. We agree with Appellant that the trial court erred by denying his motion to correct sentencing error with regard to the mandatory minimum firearm enhancement on Count 5, sexual battery with a firearm, and, therefore, reverse and remand with instructions to strike the firearm enhancement on that count. See Arnett v. State, 128 So.3d 87, 87 (Fla. 1st DCA 2013) (reversing and remanding the appellant’s sentence with directions to strike his mandatory minimum firearm enhancement sentence because a defendant’s sentence may not be enhanced pursuant to section 775.087(2), Florida Statutes, unless the defendant is charged with actually possessing a firearm, and noting that the jury’s finding of actual possession did not cure the charging defect); Green v. State, 18 So.3d 656, 656-57 (Fla. 2d DCA 2009) (holding in part that the information did not charge actual possession where it alleged that the defendant “carried, displayed, used, threatened, or attempted to use any weapon or firearm”). We otherwise affirm Appellant’s convictions and sentences.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

LEWIS, C.J., WOLF and MAKAR, JJ., concur.


text:
    James R. HASH, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5355.
    District Court of Appeal of Florida, First District.
    May 29, 2014.
    James R. Hash, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we reverse and remand the denial of ground one for further proceedings. We affirm the denial of the appellant’s remaining claims without discussion.

In ground one, the appellant asserts that counsel was ineffective for failing to object to his convictions for both burglary with an assault and home invasion robbery on double jeopardy grounds. This Court has held that “[bjurglary of a dwelling with an assault or battery is subsumed by home-invasion robbery, such that convictions of both offenses arising from a single criminal episode violate the principles of double jeopardy.” Davis v. State, 74 So.3d 1096 (Fla. 1st DCA 2011). Thus, if the convictions arose from a single episode and from a single uninvited entry into the victim’s home, the dual convictions are improper. Id. The record before this Court does not include any attachments refuting the appellant’s claim. Thus, we reverse and remand the denial of ground one for the trial court to attach portions of the record refuting appellant’s allegations or to grant relief.

AFFIRMED in part, REVERSED and REMANDED in part for further proceedings consistent with this opinion.

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


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    Antonious WILDER, Petitioner, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D12-6100.
    District Court of Appeal of Florida, First District.
    May 29, 2014.
    Antonious Wilder, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Antonious Wilder, an inmate who challenged in the trial court a disciplinary report that resulted in his disciplinary confinement for thirty days, appeals the order dismissing his petition for writ of mandamus as frivolous. We treat the appeal as a petition invoking this Court’s certiorari jurisdiction and deny the petition on the merits. The trial court did not depart from the essential requirements of law by determining that Wilder failed to demonstrate any liberty interest implicating the protections of the Due Process Clause. See Williams v. Tucker, 87 So.3d 1270, 1271 (Fla. 1st DCA 2012) (treating the appeal as a certiorari petition and holding that the trial court did not depart from the essential requirements of law by finding that the petitioner failed to demonstrate a liberty interest where he was placed in sixty days of disciplinary confinement).

DENIED on the merits.

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


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    PB SURF, LTD., and David A. Brannen, Appellants, v. BEACH COMMUNITY BANK, RFP, LLC, A Florida Limited Liability Company, Appellee.
    No. 1D13-4852.
    District Court of Appeal of Florida, First District.
    May 29, 2014.
    Robert 0. Beasley and Phillip A. Pugh of Livtak, Beasley & Wilson, LLP, Pensacola, for Appellants.
    Charles F. Beall, Jr., and Yancey F. Langston of Moore, Hill & Westmoreland, Pensacola, for Appellee.
   PER CURIAM.

AFFIRMED. See Beach Cmty. Bank v. First Brownsville Co., 85 So.3d 1119 (Fla. 1st DCA 2012) (finding sufficient evidence to support a deficiency judgment where the expert appraiser testified that, although his appraisal had been performed six weeks after the foreclosure sale, the value of the property was the same, and that expert’s testimony was uncontrovert-ed).

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.