author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CIVIL CASES-REPORT NO. 13-02.
    No. SC13-1669.
    Supreme Court of Florida.
    March 20, 2014.
    Honorable James Manly Barton, II, Committee Chair, Supreme Court Committee on Standard Jury Instructions, (Civil), Tampa, FL; Joseph Hagedorn Lang, Jr., Committee Vice-Chair and Subcommittee Chair, Supreme Court Filing Subcommittee, Tampa, FL; and Elizabeth K. Russo, Subcommittee Chair, Negligence Subcommittee, Miami, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending instruction 501.5 (Other Contributing Causes of Damages), with a new paragraph, (c), Subsequent injuries caused by medical treatment. The proposal was prompted by the law that considers the treating doctor’s negligence in rendering medical care to the victim for the initial injuries as part of the consequences caused by the original actor’s negligence that required the medical treatment. Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). There is a need for a specific instruction for this complex legal subject. The Committee published its proposal in The Florida Bar News. Two comments were received.

We authorize the changes to instruction 501.5 as proposed. Instruction 501.5(c), as amended, sets out the proposition that if the defendant caused the injury, loss, or damage to the claimant, he or she is responsible for any injury, loss, or damage caused by medical care or treatment reasonably obtained by the claimant. In Stuart, the Court held that an active tort-feasor in an automobile accident may not bring a third party action for indemnity against a physician for damages directly attributable to malpractice which aggravated the plaintiffs injuries. 351 So.2d at 704-705. The Court noted that “Florida continues to follow the general rule that where each tortfeasor is chargeable with active or affirmative negligence contributing to the injury for which recovery was had, neither is entitled to indemnity from the other.” Id. at 705. The Court thereupon stated that “[i]t follows that the rights of a party to indemnification will be denied where his own wrongful act or omission proximately contributes to the injury complained of.” Id. Underlying the Court’s ruling is the proposition that “a wrongdoer is liable for the ultimate result, although the mistake or even negligence of the physician who treated the injury may have increased the damage which would otherwise have followed from the original wrong.” Id. at 707 (quoting 57 Am.Jur.2d Negligence § 149, at 507).

After consideration of the Committee’s proposal, the dissenting view, and the comments submitted to the Committee, we hereby authorize the publication and use of instruction 501.5 as amended, set forth in the appendix to this opinion. In doing so, we express no opinion on the correctness of the instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions, nor contesting the legal correctness of the instruction. We further caution all interested parties that any comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining. The instruction as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

APPENDIX

501.5 OTHER CONTRIBUTING CAUSES OF DAMAGES

a. Aggravation or activation of disease or defect:

If you find that the (defendant(s)) caused a bodily injury, and that the injury resulted in [an aggravation of an existing disease or physical defect] [or] [activation of a latent disease or physical defect], you should attempt to decide what portion of (claimant’s) condition resulted from the [aggravation] [or] [activation]. If you can make that determination, then you should award only those damages resulting from the [aggravation] [or] [activation]. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by (claimant).

NOTE ON USE FOR 501.5a

This instruction is intended for use in situations in which a preexisting physical condition is aggravated by the injury, or the injury activates a latent condition. See C.F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694 (1937). Instruction 501.5a is necessary where Instruction 401.12b, Concurring cause, is given. See Hart v. Stern, 824 So.2d 927, 932-34 (Fla. 5th DCA 2002); Auster v. Gertrude & Philip Strax Breast Cancer Detection Institute, Inc., 649 So.2d 883, 887 (Fla. 4th DCA 1995).

b. Subsequent injuries/multiple events:

You have heard that (claimant) may have been injured in two events. If you decide that (claimant) was injured by (defendant) and was later injured by another event, then you should try to separate the damages caused by the two events and award (claimant) money only for those damages caused by (defendant). However, if you cannot separate some or all of the damages, you must award (claimant) any damages that you cannot separate as if they were all caused by (defendant).

NOTES ON USE FOR 501.5b

1. Instruction 501.5b addresses the situation occurring in Gross v. Lyons, 763 So.2d 276 (Fla.2000). It is not intended to address other situations. For example, see Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977), and Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951). The committee recognizes that the instruction may be inadequate in situations other than the situation in Gross.

2. The committee takes no position on whether the subsequent event is limited to a tortious event, or may be a nontortious event.

c. Subsequent injuries caused by medical treatment:

If you find that (defendant(s)) caused [loss] [injury] [or] [damage] to (claimant), then (defendant(s)) [is][are] also responsible for any additional [loss] [injury] [or] [damage] caused by medical care or treatment reasonably obtained by (claimant).

NOTE ON USE FOR 501.5c

This instruction is intended for use in cases involving additional injury caused by subsequent medical treatment. See, e.g., Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977); Pedro v. Baber, 83 So.3d 912 (Fla. 2d DCA 2012); Tucker v. Korpita, 77 So.3d 716, 720 (Fla. 4th DCA 2011); Nason v. Shafiranski, 33 So.3d 117 (Fla. 4th DCA 2010); Dunpan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994).


source: Caselaw Access Project

author: LABARGA, J.

license: Public Domain

text:
    Brett FENSTER, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-1164.
    Supreme Court of Florida.
    March 20, 2014.
    Carol Stafford Haughwout, Public Defender, and John Michael Conway, Assistant Public Defender, West Palm Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Laura J. Fisher, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   LABARGA, J.

We have for review Fenster v. State, 61 So.3d 465 (Fla. 4th DCA 2011), in which the Fourth District Court of Appeal cited as authority its decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), quashed, 123 So.3d 23 (Fla.2013). At the time the Fourth District issued its decision in Fenster, Williams was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending our disposition of Williams v. State, 123 So.3d 23 (Fla.2013), in which we ultimately quashed the Fourth District’s underlying Williams decision. We then issued an order directing the Respondent to show cause why this Court should not accept jurisdiction, summarily quash the Fourth District’s decision in Fenster, and remand for reconsideration in light of our decision in Williams.

Upon consideration of the State’s response and Fenster’s reply, we grant the petition for review, quash the Fourth District’s decision in Fenster, and remand this case to the Fourth District for further proceedings consistent with our decision in Williams.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY, JJ., concur.


text:
    Kevin CANDLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0844.
    District Court of Appeal of Florida, First District.
    March 8, 2012.
    Kevin Candler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    James E. LANG, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D12-0723.
    District Court of Appeal of Florida, First District.
    March 8, 2012.
    James E. Lang, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits.

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Cecil MATHEWS, Petitioner, v. STATE of Florida, James B. Jett, Clerk, Respondent.
    No. 1D12-0846.
    District Court of Appeal of Florida, First District.
    March 13, 2012.
    Cecil Mathews, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Pettway v. State, 776 So.2d 930 (Fla.2000).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Garry A. ULLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1177.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Garry A. Ulland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Cf. Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that the extraordinary writ of habeas relief cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    Scintone LEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1470.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Scintone Lee, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, THOMAS, and RAY, JJ., concur.


text:
    Garnett MELTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1569.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Garnett Melton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, THOMAS, and RAY, JJ., concur.


text:
    Larry McArthur BAGLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1481.
    District Court of Appeal of Florida, First District.
    April 17, 2012.
    Larry McArthur Bagley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied. See Kokal v. State, 901 So.2d 766, 777 (Fla.2005) (“We have repeatedly held that claims of ineffective assistance of postcon-viction counsel are not cognizable.”). Although an initial brief was not timely filed in petitioner’s postconviction appeal, this court independently reviewed the merits of the claims when we denied relief in Bagley v. State, 51 So.3d 467 (Fla. 1st DCA 2010).

BENTON, C.J., ROWE and MAKAR, JJ., concur.


text:
    Calvin D. BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0256.
    District Court of Appeal of Florida, First District.
    May 7, 2012.
    Calvin D. Burns, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    Leovigildo TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-52.
    District Court of Appeal of Florida, First District.
    May 7, 2012.
    Leovigildo Torres, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    Eldred FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0878.
    District Court of Appeal of Florida, First District.
    May 9, 2012.
    Eldred Frazier, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    Tony Lamar WINGARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1131.
    District Court of Appeal of Florida, First District.
    May 10, 2012.
    Tony Lamar Wingard, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b)(notice of appeal must be filed within 30 days of rendition of order to be reviewed). This dismissal is without prejudice to any right the appellant may have to seek belated review by filing a petition in this Court. See DeSue v. State, 65 So.3d 52 (Fla. 1st DCA 2011) (granting petition for belated appeal of rule 3.800(a) motion where order denying relief did not advise defendant of right to appeal within thirty days).

WOLF, RAY, and MAKAR, JJ., concur.


text:
    Franklin E. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0455.
    District Court of Appeal of Florida, First District.
    May 11, 2012.
    Franklin E. Roberts, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., CLARK, and MAKAR, JJ., concur.


author: PER CURIAM..

text:
    Shantae L. ANGELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0772.
    District Court of Appeal of Florida, First District.
    May 11, 2012.
    Shantae L. Angelí, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM..

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., CLARK and MAKAR, JJ., concur.


author: SWANSON, J.

text:
    F.R., Mother, Appellant, v. ADOPTION OF BABY BOY BORN NOVEMBER 2, 2010, Appellee.
    No. 1D12-16.
    District Court of Appeal of Florida, First District.
    May 21, 2012.

      Crystal McBee Frusciante on behalf of the Office of Conflict Counsel, Region One, Jupiter; Susan Barber, Assistant Regional Conflict Counsel and Supervising Counsel, Tallahassee; and Robert Keep, Jr., Assistant Regional Counsel, Jacksonville, for Appellant.
    Kelley Schaeffer of the Guardian ad Li-tem Program, Tavares, for Appellee.
    Mark R. Miller, of Ford, Miller & Warner, P.A., Jacksonville, for Appellee.
   SWANSON, J.

This is an appeal from the trial court’s order dismissing with prejudice a Motion for Relief from Judgment Terminating Mother’s Parental Rights and Amended Motion to Vacate and Set Aside the Consent to Adoption. The mother, F.R., asserts the dismissal of her motions was erroneous in that her consent to the adoption of her infant son was not knowingly and voluntarily entered; that the consent was obtained by duress and/or fraud; and that it was void because it was not translated into the mother’s native tongue— Swahili — prior to her execution of the documents. For the following reasons, we reverse the order and remand the case to the trial court for an evidentiary hearing.

The mother’s allegations state she was born in the Democratic Republic of Congo. At the age of two, she was relocated to a refugee camp in Tanzania, where she spent most of her youth. In February 2010, prior to her immigrating to the United States, the mother, aged 15, was relocated to a transitional camp in Tanzania where she was raped. She did not know she was pregnant until April 2010; the father of the child remains unknown. The mother’s relocation was sponsored by World Relief, a non-profit refugee resettlement organization. She arrived in Jacksonville, Florida, along with her sister, on May 8, 2010.

The mother is able to speak and read only Swahili, and has no comprehension of the English language. On November 2, 2010, at the age of 16, she gave birth to a baby boy. During the hospital stay, the mother was approached regarding her consent to adopt. She did not consent. On November 4 and 5, 2010, she was taken to a Jacksonville law firm in an attempt to gain her consent to sign adoption forms. Again, she did not consent.

Thereafter, on November 15, 2010, the mother, along with her baby, and accompanied by her sister, was transported to the law office of Charlene Francis, the executive director of the adoption agency, Angelic Adoptions, Inc. Also present was a representative from World Relief. The sister was appointed as the interpreter, even though she possessed only rudimentary skills in the knowledge of the English language, as made apparent from a reading of the transcript of the meeting and by the record fact that she had registered to take a class for “English for Speakers of Other Languages” just three weeks prior to this meeting and received placement scores of 8/29 (28%) for reading and 10/18 (55%) for listening.

During the November 15, 2010, meeting the mother ultimately signed the consent to adoption paperwork. The transcript of the proceeding was filed with the trial court. The Consent to Adoption was filed with a Petition to Terminate Parental Rights, and the mother’s rights were terminated without notice to her, since the documents provided for waiver of notice.

The instant proceedings were timely commenced on February 14, 2011, when Angelic Adoptions was notified by the mother’s pro bono attorney of the mother’s intent to initiate proceedings to vacate and set aside the Consent to Adoption. Subsequent amendments to the initial motions culminated in the mother’s Motion for Relief from Judgment Terminating Mother’s Parental Rights and Amended Motion to Vacate and Set Aside the Consent to Adoption filed on December 5, 2011. Angelic Adoptions filed its Motion to Dismiss, which was granted by the trial court after legal argument by counsel and without an evidentiary hearing. During the court proceedings, an interpreter was provided to translate the proceedings into Swahili so the mother could participate. In thanking the interpreter at the conclusion of the hearing, the court explained that the cause had been reassigned to the circuit court’s dependency division for the reason that the family law division, where the case began, did not have interpreters and “it was a little chaotic because a lot of people showed up in [the family law judge’s] chambers and no one spoke English and no one in court administration] spoke Swahili....”

Following the hearing, the trial court entered its final Order on Motion to Dismiss Motion for Relief from Judgment Terminating Parental Rights and Amended Motion to Vacate and Set Aside the Consent to Adoption. In the order, the court found the mother’s request for relief to be “void” of any allegation of fraud by overt act; her allegations of the totality of the circumstances amounting to duress to be “unsupported by any authority”; and her motions to be lacking any allegations that her consent was involuntary and was not an “exercise of free choice or will,” or that her state of mind was caused by any improper or coercive conduct of Angelic Adoptions. (An additional paragraph contained in the order was an unintelligible sentence fragment which prevented any conscientious review.) We conclude the trial court’s order is legally without merit.

Appellant’s allegations of fraud, duress, and coercion were properly before the trial court and were sufficient to require an evidentiary hearing. Indeed, the mother alleged not only fraud but misrepresentation arising from Angelic Adoption’s failure “to provide a translation of the nature, effect, and consequence of the ‘Consent to Adoption’ paperwork in a language [the mother] understood.... ” The pleading of misrepresentation is a separate and distinct basis for a motion for relief from judgment under rule 1.540(b)(3), along with “other misconduct by an adverse party.” In addition, we also conclude the mother’s allegation of duress based on section 63.082(7)(f), Florida Statutes (2010), and arising from the circumstances attendant to her signing of the Consent to Adoption, was sufficient to withstand a motion to dismiss. If proven true, the lack of a proper translation of documents into a language the mother could comprehend not only potentially undermined the foundation of her consent to adoption, but the fundamental fairness of the entire proceedings.

An evidentiary hearing should have been held; basic tenets of due process require nothing less. In this regard, the United States Supreme Court’s decisions “have by now made plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ ” Lassiter v. Dep’t. of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). Deference to that right was never afforded the mother in the present case. We understand that “ ‘[r]elief from judgment ... is directed to the sound discretion of the court and cannot be invoked as a matter of right.’ ” In re Adoption of Baby Girl “C”, 511 So.2d 345, 350 (Fla. 2d DCA 1987) (quoting Ashland Oil, Inc. v. Pickard, 289 So.2d 781, 782 (Fla. 3d DCA 1974)). However, we conclude the trial court below unquestionably abused that discretion in dismissing appellant’s motions without a full evidentiary hearing.

The cause is hereby REVERSED and REMANDED for further proceedings consistent with this opinion. Further proceedings are to be prioritized.

BENTON, C.J., and THOMAS, J., concur.

       The mother’s motions were filed pursuant to Florida Rule of Civil Procedure 1.540(b)(3), specifically made applicable to these proceedings by Florida Family Law Rule of Procedure 12.540, and section 63.082(7)(f), Florida Statutes (2010). Rule 1.540(b)(3) provides for a one-year filing window. Section, 63.182, Florida Statutes (2010), entitled "Statute of Repose,” similarly provides that an action “to vacate, set aside, or otherwise nullify a judgment of adoption or an underlying judgment terminating parental rights on any ground may not be filed more than 1 year after entry of the judgment terminating parental rights.” The Final Judgment Terminating Parental Rights Pending Adoption was filed on December 20, 2010.


text:
    Rufus GELSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2156.
    District Court of Appeal of Florida, First District.
    May 22, 2012.
    Rufus Gelsey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Fla. RApp. P. 9.141(d)(5).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    Mindy JOHNSON, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES and Charles Odom, Respondents.
    No. 1D12-0509.
    District Court of Appeal of Florida, First District.
    May 22, 2012.
    William R. Waters, Jr., of Waters & Associates, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Cecilia Bradley, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat'l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    John F. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1901.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2012.
    John F. Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Kendrick L. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3010.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2012.
    Kendrick L. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and SWANSON, JJ., concur.


text:
    Henry Leon MACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3131.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2012.
    Henry Leon Mack, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and SWANSON, JJ., concur.


text:
    Courtney JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2583.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2012.
    Terry P. Roberts of the Law Office of Terry P. Roberts, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on May 3, 2010, in Leon County Circuit Court Case Number 2007-CF-3987-A, 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. The court notes that petitioner has been determined by the lower tribunal to be indigent. If necessary, the lower tribunal shall enter an order appointing counsel to represent petitioner in the belated appeal authorized by this opinion.

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


author: THOMAS, J.

text:
    Scott Bradley HUGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6857.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2012.
    Rehearing Denied Nov. 15, 2012.

      Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges his judgment and sentence after being convicted by a jury of grand theft of property from a person 65 years old or older and valued at $300 or more but less than $10,000. Appellant is not challenging his conviction for contracting without a license; his sole contention is that the trial court erred in denying his motion for judgment of acquittal, because the State’s evidence was insufficient to prove that he had the requisite intent to commit grand theft. Viewing the evidence in the light most favorable to the State, we agree with Appellant, and reverse. See Jackson v. State, 18 So.3d 1016, 1025 (Fla.2009) (“If the State presents direct evidence, which the State did here, the trial court’s determination will be affirmed if the record, viewed in the light most favorable to the State, contains competent, substantial evidence supporting each element of the offenses.”).

Facts

Upon discovering they needed a new roof for their home, the homeowners informed their handyman, Tim Keahey, who had performed various jobs around their home. Because Keahey did not believe he could do the job, he approached Appellant. Appellant said he could do the roof work, and Keahey arranged for the homeowners to meet with him and Appellant, and an agreement was negotiated. The wife wrote a check to Appellant in the amount of $6,500 dated February 27, 2010. The wife testified that Keahey assured her and her husband that all necessary permits would be obtained and that Appellant was a licensed contractor. Keahey, on the other hand, testified there was never any discussion about getting a permit or about Appellant being licensed or insured.

Keahey testified that Appellant called him a few days later, explaining that the homeowners’ check would not clear for several days and asked for a loan in order to obtain the necessary materials; Keahey loaned Appellant $1,200, which was repaid soon after the homeowners’ check cleared. Appellant purchased roofing shingles and tar paper and commenced work on the roof. A few days into the job, Appellant noticed that the roof decking needed replacing, and the wife gave Appellant another check, this one for $3,700 dated March 4, 2010, for the extra materials and labor necessary to repair the decking.

An investigator for the Escambia County Building Inspections testified he went to the house in question at lunchtime on March 10, 2010, and did not see anyone on the roof. He saw shingles stacked on the roof and “a few bundles of shingles and then on the ground there was a bunch of shingles.” He asked the homeowners who was working on the roof, and they referred him to Keahey, who in turn referred him to Appellant. Keahey testified that before the investigator questioned him, Appellant told him that an inspector had come by the house and he was going to stop working for a few days. The investigator never met or spoke to Appellant. On determining that no permits had been obtained for the roofing job, the investigator issued a cease-and-desist order.

Appellant never returned to the job, and the homeowners subsequently hired a licensed contractor who testified that the job Appellant performed was substandard, the materials obtained were not the correct materials for the roof at issue, and the entire job had to be redone.

Appellant moved for a judgment of acquittal (JOA) at the conclusion of the State’s evidence, but the court did not allow Appellant to argue his motion until the close of all the evidence. When allowed to argue his motion, Appellant argued:

There’s no establishment of any intent to deprive anyone permanently or temporarily of their money. At best what you have is work that was done unsatisfactorily to the individuals. There’s no intent to deceive or take, nothing on the record for that.
Additionally, nothing that shows that [Appellant] directly led or advertised to the alleged victims in this case that he was a contractor, there’s nothing on the record to support that, no statements of him saying he’s licensed, bonded insured or even a contractor to the alleged victims.

The trial court denied Appellant’s motion, finding “the evidence to be ample and sufficient to warrant resolution by the trier of fact.” We agree with Appellant that the trial court erred in denying his motion for JOA.

Analysis

This court reviews de novo a trial court’s denial of a motion for JOA. Jones v. State, 4 So.3d 687, 688 (Fla. 1st DCA 2009).

Under section 812.014(l)(a)-(b), Florida Statutes:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Under section 812.012(3)(a)-(c), Florida Statutes:

(3) ‘Obtains or uses’ means any manner of:
(a) Taking or exercising control over property.
(b) Making any unauthorized use, disposition, or transfer of property.
(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.

“Even though a promise to perform in the future may serve as the basis of a theft, a necessary element of theft under Florida law is that the defendant must have the specific intent to commit the theft at the time of, or prior to, the commission of the act of taking.” Stramaglia v. State, 603 So.2d 536, 537-38 (Fla. 4th DCA 1992) (emphasis supplied); see also Yerrick v. State, 979 So.2d 1228, 1230 (Fla. 4th DCA 2008) (holding “Florida law provides that to prove the crime of grand theft, the State must establish the defendant had the requisite criminal intent at the time of the taking.”). Accord, Kay v. State, 48 So.3d 152, 153 (Fla. 1st DCA 2010).

The facts here are analogous with those in Crawford v. State, 453 So.2d 1139, 1140-41 (Fla. 2d DCA 1984):

[The victim] contacted [the appellant] about fixing the roof on her house.... [Appellant] told her the labor and materials to fix her roof would cost $400. [The victim] did not have $400 available at home at the time; however, she paid him $240 to enable him to purchase materials. [Appellant] gave her a receipt for the $240. Late the next afternoon [appellant] and his helper arrived at the [victim’s] home with one bucket of tar. When asked about the materials, [appellant] said he had to buy them in Tampa, and they had not yet been delivered. [The victim] became very upset with [appellant], fired him, and asked for her money back. [Appellant] said he would return the money the next evening, but he failed to do so.

There, the Second District reversed the appellant’s conviction for grand theft:

We find the evidence in this case insufficient to show that [appellant] did not intend to perform the contract when he entered into it....
[Appellant’s] showing up with a helper the day after he received a down payment negates the criminal intent of theft by larceny or false pretenses. Although there may be a serious question as to whether his performance was adequate, this appears to be a civil rather than a criminal issue. There was no requirement that he even start performance at the time he arrived with his helper. His allegedly poor performance on that date does not equate with any criminal intent for theft by stealing.”

Id. at 1142 (emphasis added).

Similarly, in Yerrick, the appellant gave the victim an estimate for repairing a fence. The victim testified that

after receiving a $2,160 check from his insurance company made payable to himself and [appellant’s] company, he endorsed the check over to [appellant]. [The victim] characterized the amount as a ‘deposit’ on the work. [The victim] testified that, about a week later, [appellant] assured him the fence would be complete when he returned from vacation. [Appellant] did, in fact, remove the old fence.

979 So.2d at 1231. Several months elapsed and the appellant still had not installed the new fence, and although he promised to come back the next day when the victim called to complain, appellant did not return and stopped answering the victim’s calls. Id. The court reversed, agreeing with the appellant’s argument that “such evidence fails to establish he had the requisite criminal intent at the time he accepted” the victim’s money. Id.

Here, the State failed to present any evidence to establish that Appellant possessed the requisite intent to commit grand theft when he accepted the two checks from the homeowners. Indeed, the State’s own witness, Tim Keahey, testified Appellant contacted him a few days after receiving the first check to obtain a loan (which he repaid) so that he could buy materials rather than waiting four or five days for the homeowners’ check to clear the bank. Furthermore, the wife testified that roofing materials were purchased and that work had begun on the roof. The investigator also testified to seeing a large number of shingles on the roof and on the ground around the house. Thus, as in Crawford, “[although there may be a serious question as to whether his performance was adequate, this appears to be a civil rather than a criminal issue.” 453 So.2d at 1142.

Keahey testified that Appellant told him that an inspector had come by, and thus, he was going to stop working for a few days. None of this testimony is consistent with a person who had no intention of doing promised work after receiving payment for such work. The same holds true for the second check. Significantly, the State charged Appellant with grand theft for the period encompassing February 25, 2010 through March 4, 2010 — the dates he was given the two checks; however, the State’s own evidence showed that Appellant used some of these funds to purchase building materials and that he did perform roofing work until the investigator arrived on March 10, 2010 — beyond the latest date that the State alleged Appellant committed grand theft. Likewise, Appellant’s failure to give the homeowners a refund undermined the State’s argument that this failure to refund the money or return after March 10, 2010, was evidence of his intent to commit theft, because such failure occurred well after the time the homeowners gave him their money to fix the roof.

Nor did the State present any evidence that Appellant misrepresented to the homeowners that he was a licensed contractor in an effort to induce them to hire him. Indeed, the wife twice testified that it was Keahey who told her Appellant was licensed and would obtain all necessary permits. Furthermore, Keahey testified that there was never any discussion about getting a permit or whether Appellant was licensed.

In sum, the State’s own witnesses established that Appellant was contacted by Keahey about doing a roofing job, and agreed with the homeowners to do the work for agreed-upon sum. Based on the foregoing, therefore, we find that the trial court should have granted Appellant’s motion for judgment of acquittal.

REVERSED.

PADOVANO and CLARK, JJ„ concur.

      . There was no dispute that the homeowners were over age 65. Also, due to health reasons, the husband did not participate in any of the proceedings below.

      . Because we hold that the court should have granted Appellant's motion for JOA based on the State's evidence, we need not discuss Appellant’s testimony, other than to note that his testimony did not provide legally sufficient evidence to sustain the charge of grand theft.


text:
    Joe Denton BROWN, Appellant, v. Kristin BROWN, Appellee.
    No. 1D12-3694.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2012.
    Rehearing Denied Nov. 15, 2012.
    Jerome M. Novey of Novey Law, Tallahassee, for Appellant.
    Carroll L. McCauley, Panama City, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 16, 2012, the Court has determined that the order on appeal does not constitute an appealable order. Philip J. Padovano, Florida Appellate Practice § 24.8, p. 513 n. 2 (2011 ed.); O’Connor v. O’Connor, 447 So.2d 1034 (Fla. 4th DCA 1984), receded from on other grounds by Thomas v. Thomas, 724 So.2d 1246 (Fla. 4th DCA 1999). Furthermore, the Court declines to accept the appellant’s suggestion that the matter be reviewed by petition for writ of certiorari. Accordingly, the appeal is DISMISSED.

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Timothy E. WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3486.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2012.
    Rehearing Denied Nov. 15, 2012.
    Timothy E. White, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

DAVIS, PADOVANO, and RAY, JJ., concur.


text:
    Willie C. CUYLER a/k/a Willie C. Cuyler, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3558.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2012.
    Rehearing Denied Nov. 20, 2012.

      Willie C. Cuyler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied.

CLARK, MARSTILLER, and MAKAR, JJ., concur.


text:
    LINH TIEN NGUYEN and Hai Linh Nguyen, Appellants, v. JOHNSON CHIN, Appellee.
    No. 4D10-4366.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2012.
    Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene and Buchsbaum, P.A., Hollywood, for appellants.
    David T. Aronberg and Cynthia G. Simpson of Law Offices of Aronberg & Aronberg, Delray Beach, for appellee.
   PER CURIAM.

Affirmed. See Bowen v. Taylor-Christensen, 98 So.3d 136, 139 (Fla. 5th DCA 2012); Metzel v. Robinson, 102 So.2d 385, 386 (Fla.1958).

WARNER, TAYLOR and CONNER, JJ., concur.


author: LEWIS, J.

text:
    J.S., Appellant, v. C.M., Advocacy Center for Persons with Disabilities, Inc., L.C., J.S., L.L., J.F., C.A, Florida’s Children First, Inc., and Agency for Persons with Disabilities, Appellees.
    No. 1D12-261.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2012.
    Rehearing Denied Nov. 15, 2012.

      Jamie Ito, Edward J. Grünewald, and Jill B. Zaborske of The North Florida Center for Equal Justice, Inc., Tallahassee, for Appellant.
    Jonathan Grabb, Senior Attorney, for Agency for Persons with Disabilities, Tallahassee.
   LEWIS, J.

J.S., Appellant, challenges a final order of the Administrative Law Judge (“ALJ”) that denied his motion for attorney’s fees, based on the ALJ’s interpretation of section 120.595(4), Florida Statutes (2009). Because the ALJ erred in interpreting section 120.595(4), we reverse and remand for further proceedings.

FACTS

On October 23, 2009, C.M. filed a Petition for Administrative Determination of Invalidity of Agency Statements with the Division of Administrative Hearings as authorized by section 120.56(4), Florida Statutes (2009). In the petition, the petitioner alleged that “APD 04-007,” an agency statement of the Agency for Persons with Disabilities (“APD”), Appellee, constituted an unadopted rule, and that APD improperly used the agency statement to assess the eligibility of individuals for APD services because it was not adopted as a rule through the rulemaking procedures required by section 120.54(l)(a), Florida Statutes (2009). Between the date of filing the petition and February 10, 2010, various individuals and entities that are not parties to this appeal filed petitions to intervene. J.S. also filed a Petition for Leave to Intervene and Petition for Administrative Determination of Invalidity of Agency Rule with the Division of Administrative Hearings. In his petition, J.S. sought a determination that APD’s agency statement was an unadopted rule in violation of section 120.54(l)(a). The ALJ granted all of the petitions to intervene.

On February 19, 2010, APD filed a notice of publication of a proposed rule. In its notice, APD stated that it published a notice of proposed rule in the February 19, 2010, edition of the Florida Administrative Weekly addressing the challenged statements, and that this notice of publication triggered an automatic stay in the proceeding pursuant to section 120.56(4). The ALJ granted the stay and canceled the final hearing. During the stay, on March 18, 2011, APD filed a notice of changing the proposed rule; APD withdrew the proposed rule and substituted it with a different proposed rule. Eventually, APD did not proceed with adopting this proposed rule.

Upon request of the parties, the ALJ lifted the stay and re-scheduled the final hearing. However, the parties filed a joint stipulation agreeing that APD’s agency statement had been in effect since December 29, 2006, and that APD relied upon this agency statement until April 20, 2010. Also, the parties agreed that the agency statement constituted an unadopted rule in violation of section 120.54. As a result of the joint stipulation, C.M. and the interve-nors filed a joint motion for summary final order. The parties requested a summary final order (1) finding that the agency statement was an unadopted rule, (2) directing APD to immediately cease relying on the agency statement as a basis for its actions, and (3) awarding reasonable attorneys’ fees and costs. C.M. and the inter-venors noted that APD conceded that the agency statement was an unadopted rule, but that APD did not agree to their entitlement to attorneys’ fees and costs.

The ALJ canceled the final hearing, and ordered C.M. and the intervenors to file responses regarding their entitlement to attorneys’ fees and costs. The ALJ gave APD twenty days from the date of the responses to file a response identifying any material facts in dispute, any argument regarding the entitlement to fees and costs, and APD’s position regarding the reasonableness of the fees. All of the parties, except J.S., waived their right to attorneys’ fees. J.S. filed a memorandum in support of his entitlement to attorney’s fees and stated that sections 120.595(4)(a) and 120.595(4)(b), Florida Statutes (2009), provided that he was entitled to attorney’s fees. J.S. also filed an affidavit of attorney’s fees, and sought an award of $9,000 in attorney’s fees for thirty-six hours of work on the instant case. J.S. claimed that his attorney worked 15.2 hours before the ALJ granted the automatic stay, 3.3 hours while the automatic stay remained in place, 10.5 hours after the case was rescheduled for hearing, and 7 hours in preparing the memorandum in support of an award of attorney’s fees. APD filed a response to J.S.’s memorandum and argued that many of the hours claimed by J.S. were unreasonable or legally uncom-pensable; however, it did not question J.S.’s entitlement to attorney’s fees.

In the Summary Final Order, the ALJ determined that a reasonable award of attorney’s fees would be 13.2 hours for work performed by J.S.’s attorney prior to APD’s notice of publication of proposed rulemaking, at a rate of $175.00 per hour, for a total of $2,310.00. However, despite this finding, the ALJ concluded, in pertinent part, as follows:

[What is] fatal to [J.S.’s] counsel’s claim for fees is the fact that the statute only allows reasonable fees and costs to the petitioner. It does not authorize fees or costs for intervenors, and absent such authority, no fees ... can be awarded to counsel for J.S. in this case.

The ALJ then concluded as follows:

APD 04-007 is a statement meeting the definition of a rule in section 120.52(16), and has not been adopted as a rule, in violation of section 120.54(l)(a). To the extent that APD continues to rely on APD 04-007, it shall stop doing so. Petitioner’s request for costs and ... J.S.’s request for attorney’s fees are denied.

ANALYSIS

This Court reviews an ALJ’s findings of fact for competent, substantial evidence, while reviewing an ALJ’s conclusions of law de novo. Moreland ex rel. Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009, 1010 (Fla. 1st DCA 2009); see also § 120.68(7), Fla. Stat. (2009); Abbott Labs. v. Mylan Pharms., 15 So.3d 642, 654 (Fla. 1st DCA 2009). “[T]he standard of review of an ALJ’s final administrative order determining an issue of statutory interpretation is de novo.” A. Duda & Sons, Inc. v. St. Johns River Water Mgmt. Dist., 17 So.3d 738, 742 (Fla. 5th DCA 2009) (emphasis omitted).

Section 120.54(l)(a), Florida Statutes (2009), provides that “each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable[,]” unless the agency proves that the agency statement fits within some limited exceptions listed in that subsection that are not applicable here. Section 120.56(4)(a), Florida Statutes (2009), allows “[a]ny person substantially affected by an agency statement” to seek a determination from an ALJ that the statement violates section 120.54(l)(a). Section 120.595(4), Florida Statutes (2009), which authorizes an award of reasonable attorney’s fees and costs in actions brought against an agency pursuant to section 120.56(4), provides as follows:

(4) Challenges to agency action pursuant to section 120.56(4).—
(a) If the appellate court or administrative law judge determines that all or part of an agency statement violates s. 120.54(l)(a), or that the agency must immediately discontinue reliance on the statement and any substantially similar statement pursuant to s. 120.56(4)(e), a judgment or order shall be entered against the agency for reasonable costs and reasonable attorney’s fees, unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds.
(b) Upon notification to the administrative law judge provided before the final hearing that the agency has published a notice of rulemaking under s. 120.54(3)(a), such notice shall automatically operate as a stay of proceedings pending rulemaking. The administrative law judge may vacate the stay for good cause shown. A stay of proceedings under this paragraph remains in effect so long as the agency is proceeding expeditiously and in good faith to adopt the statement as a rule. The administrative law judge shall award reasonable costs and reasonable attorney’s fees accrued by the petitioner pri- or to the date the notice was published, unless the agency proves to the administrative law judge that it did not know and should not have known that the statement was an unadopted rule. Attorneys’ fees and costs under this paragraph and paragraph (a) shall be awarded only upon a finding that the agency received notice that the statement may constitute an unadopted rule at least 30 days before a petition under s. 120.56(4) was filed and that the agency failed to publish the required notice of rulemak-ing pursuant to s. 120.54(3) that addresses the statement within that 30-day period. Notice to the agency may be satisfied by its receipt of a copy of the s. 120.56(4) petition, a notice or other paper containing substantially the same information, or a petition filed pursuant to s. 120.54(7). An award of attorney’s fees as provided by this paragraph may not exceed $50,000.

We note, initially, the challenge to APD’s agency statement was subject to an automatic stay. In a challenge to an agency action under section 120.56(4), paragraph (b) provides that, upon notice to the ALJ before the final hearing that the agency has published a notice of rulemak-ing pursuant to section 120.54(3)(a), such notice shall automatically operate as a stay of the proceedings pending rulemaking. However, paragraph (b) provides that an ALJ may vacate a stay if good cause is shown, and that the stay only “remains in effect so long as the agency is proceeding expeditiously and in good faith to adopt the statement as a rule.” Pursuant to paragraph (b), while the stay is in effect, and the agency adopts the statement as a rule, “[t]he administrative law judge shall award reasonable costs and reasonable attorney’s fees accrued by the petitioner pri- or to the date the notice was published, unless the agency proves to the administrative law judge that it did not know and should not have known that the statement was an unadopted rule.”

Here, APD did not adopt the challenged statement as a rule, and upon the request of the parties, the ALJ lifted the stay and re-scheduled the final hearing. Accordingly, the ALJ properly lifted the stay that was created pursuant to paragraph (b). Pending the final hearing, the parties filed a joint stipulation to the effect that the agency statement met the definition of a rule in section 120.52(16), and because it was not adopted through the rulemaking process, it violated section 120.54(l)(a). Paragraph (a) authorizes an award of attorney’s fees and costs in a challenge to an agency action pursuant to section 120.56(4) where the appellate court or the ALJ “determines that all or part of an agency statement violates s. 120.54(l)(a), or that the agency must immediately discontinue reliance on the statement and any substantially similar statement pursuant to s. 120.56(4)(e)....”

Upon filing the joint stipulation, the ALJ canceled the final hearing. Subsequently, the ALJ entered the Summary Final Order in which the ALJ properly determined that the agency statement met the definition of a rule in section 120.52(16), that because it was not adopted through the rulemaking process, it violated section 120.54(l)(a), and that to the extent APD continued to rely on the agency statement, it must stop doing so. As such, the provisions of paragraph (a), authorizing an award of attorney’s fees, apply to the facts of this case.

J.S. argues that he was not precluded from recovering his attorney’s fees under paragraph (a) on the basis that J.S. was not “the petitioner.” We agree. The plain language of paragraph (a) does not limit the recovery of attorney’s fees to “the petitioner.” Moreover, the attorney’s fees provisions of paragraph (b) that specifically apply to paragraphs (a) and (b) do not preclude an award of attorney’s fees to J.S. on the basis that J.S. is an intervenor. Thus, the ALJ reversibly erred in concluding that section 120.595(4) does not authorize attorney’s fees for intervenors.

Our interpretation of section 120.56(4) is further supported by its Legislative history. The previous version of paragraph (a) included the phrase “to the petitioner” in the attorney’s fees provision. § 120.595(4)(a), Fla. Stat. (2008). However, the Legislature amended paragraph (a) in 2008 and deleted the phrase “to the petitioner” from paragraph (a). Ch. 08-104, § 13 at 1106, Laws of Fla. Upon amending paragraph (a), the Legislature added paragraph (b) to the current version of section 120.595(4), and the Legislature included the phrase “to the petitioner” in one of the attorney’s fees provisions of paragraph (b). See id.; § 120.595(4)(b), Fla. Stat. (2009). Thus, when the Legislature used the phrase “to the petitioner” in one of the attorney’s fees provisions of paragraph (b), but deleted it in paragraph (a) of the same statute, we will not imply it where the Legislature excluded it. See Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995) (“When the legislature has used a term, as it has here, in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded.”). As such, the ALJ had no authority to read into paragraph (a) a requirement not imposed by the Legislature or add words that were deleted by the Legislature. See Germ v. St. Luke’s Hosp. Ass’n, 993 So.2d 576, 578 (Fla. 1st DCA 2008) (“When interpreting a statute, courts look first to the statute’s plain language. If the statute’s plain language is clear and unambiguous, courts should rely on the words used in the statute without involving rules of construction or speculating as to the legislature’s intent. Courts should give statutory language its plain and ordinary meaning and may not add words that were not included by the legislature.”) (citations omitted). Furthermore, as we previously noted, this attorney’s fees provision of paragraph (b) does not apply to the facts of this case.

CONCLUSION

For the foregoing reasons, we conclude that the ALJ reversibly erred in interpreting section 120.595(4). Accordingly, we reverse the final order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

THOMAS, J., concurs and WOLF, J., concurs in result only.

      . Florida Administrative Code Rule 28-106.205 (2009) allows "[p]ersons other than the original parties to a pending proceeding whose substantial interest[s] will be affected by the proceeding ... [to] petition the presiding officer for leave to intervene^]” and sets forth the procedures that one must follow to intervene. Under that rule, one must file a petition to intervene, and the petition must conform to Florida Administrative Code Rule 28-106.201(2) (2009), which sets forth the requirements for filing a petition to initiate an administrative hearing.


text:
    Brian Christopher STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1058.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, MARSTILLER, and SWANSON, JJ., concur.


text:
    Tavares McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1201.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2012.
    Rehearing Denied Nov. 29, 2012.

      Tavares McDuffie, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the summary denial of his rule 3.850 motion for postcon-viction relief in which he claimed that his trial counsel was ineffective for not objecting to the filing of an amended information charging a new offense after expiration of the speedy trial period. We issued a Toler order, and in response, the State argued that the denial of this claim should be reversed and remanded for further proceedings. We previously reversed for further proceedings on this claim, see McDuffie v. State, 77 So.3d 848 (Fla. 1st DCA 2012), and we decline to do so again. Instead, for the reasons that follow, we reverse and remand with instructions that the trial court enter judgment against Appellant for the originally charged offense and resentence him accordingly.

In order to prevail on a claim of ineffective assistance of trial counsel, a defendant must establish that 1) counsel’s performance was constitutionally deficient and 2) there is a reasonable probability that the outcome of the proceedings would have been different absent the deficient performance. See Spencer v. State, 842 So.2d 52, 61 (Fla.2003) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Appellant established both elements in this ease.

Appellant was arrested on August 23, 2007, and charged with sale or delivery of cocaine, a second-degree felony. The 175-day speedy trial period expired on February 14, 2008, and Appellant filed a notice of expiration of speedy trial and a motion for speedy trial on February 22, 2008. The case was set for trial on March 3, 2008, within the “recapture period” provided by the speedy trial rule.

On February 28, 2008, the State filed an amended information charging Appellant with sale or delivery of cocaine within 1,000 feet of a school, a first-degree felony. Appellant’s trial counsel did not object to the amended information, and on March 3, 2008, Appellant was taken to trial on the charge alleged in the amended information. The jury found Appellant guilty as charged, and the trial court sentenced him to 15 years in prison consecutive to a sentence in an unrelated case.

Appellant argues that his trial counsel performed deficiently by not objecting to the amended information filed after expiration of the speedy trial period. We agree. The law is clear that “although the state may amend an information after the speedy trial time expires, the state may not circumvent the intent and effect of the speedy trial rule by lying in wait until the speedy trial time expires and then amending an existing information in such a way that results in the levying of new charges (if those new charges arise from the same facts and circumstances giving rise to the original charge).” Pezzo v. State, 903 So.2d 960, 962 (Fla. 1st DCA 2005) (emphasis in original); see also State v. D.A., 939 So.2d 149 (Fla. 5th DCA 2006) (holding that an amended petition filed after speedy trial period and charging a new offense violates defendant’s speedy trial rights); State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005) (explaining that the filing of an information to allege a new crime after expiration of the speedy trial period is prejudicial to the defendant). A “new” offense is one that contains an element that the originally charged offense did not contain. See D.A., 939 So.2d at 153. Here, the offense charged in the amended information contained an element that the offense charged in the original information did not contain, ie., that the offense was committed within 1,000 feet of a school. See Cox v. State, 764 So.2d 711, 713 (Fla. 1st DCA 2000) (reversing conviction under section 893.13(l)(c), Florida Statutes, because “the state failed to prove an essential element of the charged offense, i.e., that the offense was committed within 1,000 feet of a school”).

Counsel’s failure to object to the amended information prejudiced Appellant in that he was taken to trial on, found guilty of, and sentenced for an improperly charged, more serious crime. See Clifton, 905 So.2d at 178. Additionally, as we stated in our opinion affirming Appellant’s conviction, his counsel’s failure to object to the amended information precluded our review of the issue on direct appeal. See McDuffie v. State, 28 So.3d 102, 103 (Fla. 1st DCA 2009) (affirming Appellant’s conviction “[bjecause the propriety and timeliness of the amended information was not raised in the trial proceedings”).

Had counsel objected and preserved the issue, the remedy on direct appeal would not have been dismissal of the amended information and discharge from the crime alleged in the original information as Appellant contends. Rather, the remedy would have been reversal of the conviction for the offense charged in the amended information and remand for entry of judgment and resentencing on the original charge. See Whitehall v. State, 81 So.3d 599 (Fla. 2d DCA 2012) (reversing conviction for fleeing to elude under section 316.1935(3) and remanding for entry of judgment on the original charge of fleeing to elude under section 316.1935(1) where the former charge was alleged in an amended information filed after expiration of the speedy trial period but the jury’s guilty verdict on that charge necessarily included a finding of guilt on the original charge).

There is no reason the remedy should be any different in the postconviction context. Here, as in Whitehall, Appellant was taken to trial within the recapture period and the jury’s guilty verdict on the amended charge (sale or delivery of cocaine within 1,000 feet of a school) necessarily includes a finding of guilt as to the original charge (sale or delivery of cocaine) because all of the elements of the latter offense are contained in the former offense. Compare § 893.13(l)(a)l., Fla. Stat. (2006) with § 893.13(l)(e)l., Fla. Stat. (2006); see also Cox, 764 So.2d at 713 (reversing a conviction for sale of cocaine within 1,000 feet of a school and remanding with directions to enter judgment for the lesser included offense of sale of cocaine). Accordingly, we reverse the denial of Appellant’s motion for postconviction relief and remand with instructions that the trial court enter judgment on the charge of sale or delivery of cocaine and resentence Appellant accordingly.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.

      . The motion raised several other claims, none of which have merit. We affirm the denial of those claims without further comment.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).

      . We recognize that the 15-year sentence imposed for the first-degree felony conviction based on the amended information could have been imposed on the second-degree felony charged in the original information. However, because the trial court elected not to sentence Appellant to the statutory maximum for the offense that he was convicted of, the outcome of the proceedings may very well have been different had Appellant been taken to trial only on the second-degree felony.

      . Appellant’s reliance on rule 3.191(n) for this remedy is misplaced. Although that rule provides that a discharge based on a violation of the speedy trial rule bars prosecution of the charged crime as well all other lesser included offenses based on the same conduct, the plain language of the rule indicates that the bar applies only to those crimes "on which trial has not commenced.” Here, Appellant was effectively taken to trial on the crime charged in the original information during the recapture period by virtue of the fact that it was a lesser included offense of the crime charged in the amended information.


text:
    Anthony GARLAND, Petitioner, v. Dr. LORD, et al., Respondents.
    No. 1D12-4743.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2012.
    Anthony Garland, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Powell v. Florida Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999) (denying a petition for belated appeal without prejudice to seek relief in the trial court stating that because the proceedings below were civil in nature, the provisions of Florida Rule of Appellate Procedure 9.141 are not applicable).

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Roderick DEVAUGHN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4324.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2012.
    Roderick Devaughn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(d)(5) (“In no case shall a petition alleging ineffective assistance of appellate counsel be filed more than 4 years after the judgment and sentence become final on direct review.”).

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Francisco BANKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3857.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2012.
    Francisco Banks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 21, 2011, order denying motion to correct illegal sentence in Madison County Circuit Court case number 2005-159-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Robert P. SHELEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3795.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2012.
    Robert P. Sheley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. A disposition on the merits of 1D12-3794 will be forthcoming.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Ronald D. ALLOWAY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D12-3187.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2012.

      Ronald D. Alloway, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

WOLF, THOMAS, and CLARK, JJ„ concur.


text:
    Jennifer C. BURNO, Appellant, v. Donald T. BURNO, Appellee.
    No. 5D12-3642.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2013.
    Jessie L. Harrell of Creed & Gowdy, P.A., Jacksonville, for Appellant.
    A. Julia Graves of Law Office of A. Julia Graves, P.A., Vero Beach, for Appellee.
   PER CURIAM.

The former wife, Jennifer Burno, appeals from the partial final judgment granting her former husband, Donald Bur-no’s second amended supplemental petition for modification of child custody. Finding the trial court applied the proper legal standard and did not abuse its discretion, we affirm.

We note that the judgment does not include significant oral findings made at the conclusion of the trial. We remand for entry of a corrected judgment that includes those findings of fact.

AFFIRMED; REMANDED for entry of corrected judgment.

COHEN and WALLIS, JJ., and RODRIGUEZ, HEATHER PINDER, Associate Judge, concur.

      . For instance, the written judgment did not reflect the trial court's findings that the former wife had violated the visitation schedule and regularly made unilateral decisions regarding the children’s upbringing. Those findings supported the trial court’s conclusion that there had been a substantial, material, and unanticipated change in circumstances since entry of the initial judgment.


author: COHEN, J.

text:
    Sarah TOUCHET, etc., Appellant, v. Sandra JONES, Appellee.
    No. 5D12-4088.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.

      Tania R. Schmidt-Alpers of Tania R. Schmidt-Alpers, P.A., St. Augustine, for Appellant.
    No Appearance for Appellee.
   COHEN, J.

Sarah Touchet appeals from the portion of the trial court’s final judgment of injunction for protection against domestic violence that required her and her young son to obtain psychological evaluations. We reverse in part.

Touchet and Sandra Jones, the respondent, were a same-sex couple who lived together as family. In August 2012, Tou-chet filed a petition for injunction for protection against domestic violence against Jones, alleging that Jones had physically attacked her. Jones filed a reciprocal petition for injunction against Touchet. The trial court held a hearing on both petitions, during which Touchet testified that Jones attacked her in a fit of jealousy. Jones beat Touchet with both fists, strangled her, slammed her head into the ground, and threw her against a cabinet. At some point during the attack, Touchet lost consciousness. Jones also locked Touchet’s phone and took her keys to prevent her from leaving. Deputy April Mayle, who arrived on the scene, described Touchet’s injuries as “pretty severe.” Touchet sustained multiple injuries during the attack — a fractured skull, several slipped discs, black eyes, and possibly a dislocated jaw.

The attack was one of many by Jones against Touchet, and the severity of the attacks seemed to escalate over time. On one occasion, Jones attacked Touchet as Touchet was packing her belongings in an attempt to leave their home. Jones often threatened to shoot and kill Touchet or report her to the Department of Children and Families to have her children taken away.

In granting Touchet’s petition for injunction, the trial court found that there was an overwhelming amount of evidence in her favor. The trial court ordered Jones to complete a certified batterers’ intervention program and undergo evaluations for both substance abuse and mental health. The court also ordered Touchet to obtain psychological evaluations for herself and her son, explaining, “I’m going to order you to obtain a psychological evaluation that focuses on your domestic violence issues-basically, why you keep going back. I want to get that fixed. And I’m also going to order you to follow any recommended treatment.” Touchet filed a motion for stay pending appeal, which the trial court denied. The trial court later issued an order of contempt threatening to incarcerate Touchet if she did not comply with the order within thirty days.

On appeal, Touchet argues that the trial court erred in requiring her to obtain psychological evaluations in its order granting her petition for injunction. We agree.

Section 741.30(6)(a), Florida Statutes (2012), sets forth the relief that a trial court may grant upon finding that a petitioner is a victim of domestic violence. In reviewing section 741.30(6)(a), we find no authority for the trial court to require a victim of domestic violence to obtain a psychological evaluation and counseling. Pertinent to this case, the statute provides that the court may “[ojrder [ ] the respondent to participate in treatment, intervention, or counseling services to be paid for by the respondent,” including participation in a batterers’ intervention program. § 741.30(6)(a)5., Fla. Stat. (2012) (emphasis added). The statute further provides that the trial court may “[rjefer [ ] a petitioner to a certified domestic violence center.” § 741.30(6)(a)6., Fla. Stat. (2012) (emphasis added). In our view, the Legislature’s use of that contrasting language was not unintentional. Thus, while the trial court had the authority to refer Tou-chet to a psychologist, it could not order her to undergo an evaluation.

While the trial court might have been well-intentioned, the impact of its order runs contrary to the goals and purposes of the domestic-violence statute. The statute is designed to protect victims of domestic violence. To that end, it sets forth the role of law enforcement, the clerks of the court, and the judiciary. The Legislature has attempted to make it as easy as possible for victims of domestic violence to seek assistance from the courts, as evidenced by its elimination of any filing fee or bond and its requirement that the clerk of the court assist victims in filing for and enforcing injunctions. Requiring a victim of domestic violence to undergo a psychological evaluation would impose a substantial financial and emotional burden on the victim and would have a chilling effect on victims of domestic violence seeking the protection of the courts.

The psychological issues underlying the cycle of domestic violence have been explored in depth by many social scientists. See, e.g., Lenore E. Walker, The Battered Woman (1979). These issues are complicated, and the courts are ill-suited to address them. The best the courts can do is offer protection to those victims of abuse without placing hurdles in their way and without threatening to incarcerate them.

Accordingly, the portion of the order requiring Touchet and her son to obtain psychological evaluations is stricken.

REVERSED IN PART and REMANDED.

GRIFFIN and LAWSON, JJ., concur.

      .While Touchet has two young sons, it seems that only the older son was present at the time of the attack.

      .At the time of the hearing, Touchet’s doctor was still in the process of ordering X-rays and MRls.

      .Jones’s petition was denied.

      . We acknowledge that section 741.30(6)(a)7., Florida Statutes (2012), allows the trial court to "order[] such other relief as the court deems necessary for the protection of a victim of domestic violence....” In our view, however, the relief contemplated in section 741.30(6)(a)7. does not encompass ordering a victim to undergo a psychological evaluation. Section 741.30(6)(a)7. is intended to allow for relief other than the relief already provided for in the statute. Because treatment and counseling for the respondent and the petitioner are already provided for in sections 741.30(6)(a)5. and 741.30(6)(a)6., section 741.30(6)(a)7. does not encompass such relief.


author: WALLIS, J.

text:
    Mario LOPEZ, Appellant, v. Margarita LOPEZ, Appellee.
    No. 5D12-2887.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2013.

      Gary S. Israel of Gary Israel, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   WALLIS, J.

Mario Lopez (“Former Husband”) challenges the equitable distribution scheme of an amended final judgment that dissolved the marriage between Former Husband and Margarita Lopez (“Former Wife”). Because the trial court improperly allocated the full value of a depleted asset, including all tax consequences, to Former Husband in the equitable distribution scheme, we reverse.

The parties were married nearly thirty-eight years at the time Former Wife filed for dissolution. Former Husband worked for Waste Management, Inc., during the marriage and contributed to a retirement account with the company (the “401(k)”). During the lower proceedings, Former Husband worked as a garbage collector for a different company, earning a gross wage of $8,776.78 per month. Former Wife did not have any significant means of income; however, the parties shared a small rental income from a marital property. After Former Wife filed her petition for dissolution, Former Husband liquidated the 401(k) — then valued at $76,718. He was taxed $15,843.74 on the liquidation. Former Husband expended a large portion of the 401 (k) funds on attorney’s fees for himself and Former Wife. He also spent some of the funds on property taxes for marital property and home repairs.

The final judgment stated, in pertinent part, as follows:

Pursuant to this Court’s Amended Order Implementing a Standing Temporary Order for Dissolution of Marriage Actions With or Without Minor Children ... “[njeither party may ... dissipate the value of an asset ... [or] waste jointly owned funds ... except funds may be spent for necessities of life. The use of funds or income after separation must be accounted for and justified as reasonable and necessary for the necessities of the party ... Attorney’s fees and costs are necessities and must be accounted for.”
[Former] Husband, unilaterally and without authorization from the Court, liquidated the entire 401(k) account in December 2010, incurring an income tax liability of $15,343.74 and netting the sum of $61,374.94....
The Court concludes, therefore, that [Former] Husband’s actions in this regard were intentional, wrongful and contrary to the Court’s Standing Order. He wasted and dissipated the 401(k) account by liquidating the entire account, without court approval and without the [Former] Wife’s assent. [Former] Husband deprived [Former] Wife of the opportunity to take a part of the 401(k) account in equitable distribution by a qualified domestic relations order (QDRO), effectively deferring any tax liability whatsoever, and incurred an unnecessary tax liability on account funds that did not need to be liquidated. [Former] Husband testified, and this Court accepts, that he spent $9,500 of this sum on attorney’s fees and costs for the wife, and approximately $30,500 of this money on attorney’s fees for himself and for taxes, insurance and maintenance on the marital properties. [Former] Husband was not able to explain, however, why the withdrawal was necessary to pay taxes and insurance on the marital properties which had previously been paid for out of regular income. There was some suggestion that [Former] Husband used regular income to pay for purchases to benefit his paramour, and for a vacation with his paramour. A balance of $21,401.68 of the 401(k) proceeds remains.
This Court finds that the entire 401 (k) account is a marital asset, and because of [Former] Husband’s wrongful conduct in liquidating the entire account, that the just and equitable date for determining value of the asset is December 2010, at the time [Former] Husband liquidated the account. The Court further finds that it would be appropriate to assess the entire account value, less permitted and appropriate expenditures, to [Former] Husband as and for equitable distribution, and that [Former] Husband should bear the entire tax consequence of liquidation.

(Emphasis Added). The equitable distribution scheme attached to the final judgment awarded $36,745.42 to Former Husband as “Retirement Account (current balance plus tax liability).” The court allocated $101,728.21 in marital assets to each party.

Former Wife filed a motion for rehearing requesting the court, in part, to allocate the entire preliquidation amount of the 401(k) to Former Husband. The court subsequently amended the final judgment and removed the portion of the final judgment that deducted “permitted and appropriate expenditures” from the 401 (k) allocation; thus, the court awarded the entire $76,718.68 to Former Husband, which in-eludes all tax consequences and nearly $40,000 in attorney’s fees. Former Husband argues that this was error. We agree.

This Court reviews a trial court’s final judgment dissolving a marriage for an abuse of discretion. See Vitalis v. Vitalis, 799 So.2d 1127, 1130 (Fla. 5th DCA 2001) (“In a dissolution proceeding, the trial court possess [sic] broad discretion to do equity between the parties.” (citing Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980))). It is not this Court’s position to reevaluate the evidence; rather, we must simply determine whether the trial court’s judgment is supported by competent, substantial evidence. Id. (citing Deakyne v. Deakyne, 460 So.2d 582, 583 (Fla. 5th DCA 1984)).

“As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.” Roth v. Roth, 973 So.2d 580, 584 (Fla. 2d DCA 2008) (citing Cooper v. Cooper, 639 So.2d 153, 155 (Fla. 2d DCA 1994); Bush v. Bush, 824 So.2d 293, 294 (Fla. 4th DCA 2002); Knecht v. Knecht, 629 So.2d 883, 886 (Fla. 3d DCA 1993)). However, “if marital misconduct results in the depletion or dissipation of a marital asset, a trial court may make an unequal distribution of marital property, or may assign the asset to the dissipating spouse as part of that spouse’s equitable distribution.” Karimi v. Karimi, 867 So.2d 471, 475 (Fla. 5th DCA 2004) (citing Bush, 824 So.2d 293; Romano v. Romano, 632 So.2d 207 (Fla. 4th DCA 1994)). One party’s use of an asset out of necessity and for reasonable living expenses does not justify an award of a depleted asset absent evidence of misconduct. Id. (citing Cooper, 639 So.2d 153; Knecht, 629 So.2d 883; Akers v. Akers, 582 So.2d 1212 (Fla. 1st DCA 1991)). Attorney’s fees spent on the dissolution of the marriage are considered reasonable living expenses. See, e.g., Levy v. Levy, 900 So.2d 737, 746 (Fla. 2d DCA 2005) (holding that trial court erred in assigning depleted asset to former wife when she spent asset funds on attorney’s fees and living expenses). The misconduct must be an intentional dissipation or destruction of the asset for one party’s own benefit and for a purpose unrelated to the marriage, not simply mismanagement or squandering of funds in a way that the other spouse disapproves. Roth, 973 So.2d at 585 (citing Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998); Levy, 900 So.2d at 746).

Here, the trial court found misconduct because Former Husband spent a portion of his monthly income on his girlfriend — which it reasoned would normally be available to pay for property taxes and home improvements. This finding, however, does not permit the court to allocate depleted funds that were properly used, such as attorney’s fees. See, e.g., Bush v. Bush, 824 So.2d 293, 294 (Fla. 4th DCA 2002) (holding that evidence that former husband improperly spent up to $9,000 of marital funds on his girlfriend, does not justify attribution of $43,138 in no-longer-existing assets). Indeed, the trial court’s amended final judgment properly acknowledges that attorney’s fees are “necessities.” Therefore, the only depleted funds that should be allocated to Former Husband are those that the trial court found were spent on Former Husband’s girlfriend — not the 401(k)’s entire previous balance of $76,718.68.

The trial court also allocated the entire 401(k) tax burden of $15,343.74 to Former Husband. Such distribution presupposes that Former Husband liquidated the 401(k) to improperly dissipate the funds on his girlfriend and fails to account for the overwhelming purpose of the 401 (k) liquidation — the nearly $40,000 in attorney’s fees. The attorney’s fees expense constituted roughly 65% of the after-tax value of the 401(k). There is no indication in the record that Former Husband would have been able to pay the attorney’s fees from his net income of $3,047.52 per month, considering his other monthly expenses. Additionally, the parties did not have any other assets from which Former Husband could draw funds to pay for the litigation. Therefore, because the 401 (k) was liquidated primarily and necessarily for the payment of legitimate expenses— attorney’s fees — the trial court erred by allocating the tax consequences solely on Former Husband. See Vaccaro v. Vaccaro, 677 So.2d 918, 922 (Fla. 5th DCA 1996) (“One party should not be charged with the full value of an asset that is burdened with an inevitable payment of taxes.”).

Accordingly, we reverse and remand for the trial court to reconsider the distribution of marital assets consistent with this opinion. We affirm the amended final judgment in all other respects.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

LAWSON and BERGER, JJ., concur.

      . Former Wife has not provided this Court with the benefit of an answer brief.


text:
    Salvador ANTUNEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1983.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 2013.

      Salvador Antunez, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Salvador Antunez appeals the order denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. He argues the trial court erred in determining his motion was untimely. We agree and reverse.

On March 17, 2008, Antunez was convicted and sentenced for the crimes of capital sexual battery and lewd or lascivious molestation of a child under twelve. This court affirmed his judgment and sentence and mandate issued on March 4, 2009. See Antunez v. State, 3 So.3d 337 (Fla. 5th DCA 2009). Accordingly, Antunez had until March 4, 2011 to file his postconviction motion. See Fla. R.Crim. P. 3.850(b).

For some unknown reason, the trial court did not receive Antunez’s rule 3.850 motion until April 22, 2013. As a result, rather than addressing Antunez’s claims, the trial judge denied the motion as untimely and procedurally barred. A review of the record reveals this was error. Although the trial court did not physically receive the motion within the two year time limit provided by the rule, the date stamp on the motion shows that Antunez placed the motion in the hands of prison officials for mailing on February 21, 2011; thus, making it timely under the mailbox rule. See Haag v. State, 591 So.2d 614, 617 (Fla.1992) (Under the “mailbox rule,” a pro se postconviction relief motion is deemed filed on the date the inmate relinquishes control of the document to State officials for delivery.). We therefore reverse the order denying Antunez’s motion for postconviction relief and remand for consideration on the merits. See Lawson v. State, 107 So.3d 1228, 1229 (Fla. 2d DCA 2013).

REVERSED AND REMANDED.

GRIFFIN, SAWAYA and BERGER, JJ., concur.


text:
    Shamiekka FORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-552.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 2013.
    James S. Purdy, Public Defender, and George D.E. Burden, 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.

Shamiekka Ford appeals her conviction for second-degree murder. The only issues raised on this direct appeal relate to the alleged ineffectiveness of her trial counsel. Because the record does not establish ineffective assistance, we affirm. Gore v. State, 784 So.2d 418, 437-38 (Fla. 2001) (“A claim of ineffective assistance of counsel may be raised on direct appeal only where the ineffectiveness is apparent on the face of the record”) Our affir-mance is without prejudice to Ford’s right to seek postconviction relief.

AFFIRMED.

GRIFFIN, EVANDER and BERGER, JJ., concur.


text:
    Akeem CHANDLER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2800.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 2013.
    Akeem Chandler, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying Petitioner’s motion for post-conviction relief, filed January 10, 2012, in Case No. 2010-CF-4474-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, COHEN and WALLIS, JJ., concur.