text:
    LASER SPINE INSTITUTE, LLC, Petitioner, v. Robert William GREER, Jr., Leslie Doucette, Clara Doucette, and Leslie Doucette, Jr., Respondents.
    No. 1D14-1134.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2014.
    Thomas A. Valdez and Todd M. Smayda of Quintairos, Prieto Wood & Boyer, P.A., Tampa, for Petitioner.
    Jeffrey J. Humphries, • J. Stephen O’Hara, Jr., and Kathryn N. Slade of O’Hara Havorsen Humphries, PA, Jacksonville, for Respondent Robert William Greer, Jr.
    No appearance for Respondents Leslie Doucette, Clara Doucette, and Leslie Dou-cette, Jr.
   PER CURIAM.

Laser Spine Institute, LLC (LSI), a non-party below, petitions for certiorari review of an order partially denying its motion for a protective order and requiring it to produce certain billing and collection documents that contain trade secrets. There is no dispute that the documents at issue contain trade secrets, but according to the party seeking the documents — the defendant below, Respondent Robert William Greer, Jr. — the documents are necessary for him to determine the reasonableness of the charges for the medical services provided by LSI to one of the plaintiffs below, Respondent Clara Doucette. The trial court' ordered production of the documents subject to a confidentiality agreement to be crafted by LSI and Mr. Greer.

LSI contends that, notwithstanding the requirement of a confidentiality agreement, the trial court departed from the essential requirements of law by requiring production of the documents without making any findings to support its implicit conclusion that Mr. Greer demonstrated a reasonable necessity for the documents that outweighs LSI’s interest in maintaining the confidentiality of its trade secrets. We agree. See KPMG, LLP v. Dept, of Ins., 833 So.2d 285, 286 (Fla. 1st DCA 2002) (quashing portion of order requiring production of documents containing trade secrets and explaining that such orders must contain “particularized findings in support of the determination that the [requesting party] had demonstrated a reasonable necessity for production despite the existence of trade secrets”); Virginia Electronics & Lighting Corp. v. Koester, 714 So.2d 1164, 1165 (Fla. 1st DCA 1998) (“We conclude that, because the order fails to ... set forth findings of fact supporting a conclusion that disclosure of the trade secrets is reasonably necessary to resolve the issues in dispute, it constitutes a material departure from the essential requirements of the law.”); see also Cooper Tire & Rubber Co. v. Cabrera, 112 So.3d 731, 733 (Fla. 3d DCA 2013) (“Orders improperly requiring the disclosure of trade secrets, even providing for confidentiality limitations, are subject to certiorari review.”). Accordingly, we grant the petition for writ of certiorari and quash the challenged order insofar as it denied LSI’s motion for protective order.

PETITION GRANTED; ORDER QUASHED.

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

      . Ms. Doucette and the other plaintiffs below, Leslie Doucette and Leslie Doucette, Jr., are designated as Respondents pursuant to Florida Rule of Appellate Procedure 9.020(g)(4), but they have not participated in this proceeding.

      . In light of this disposition, we need not consider the issues raised by LSI pertaining to the denial of its motion for reconsideration. LSI may raise those issues on remand.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Gary BELIVEAU, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2993.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.

      Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, for Appellant.
    Gary Beliveau, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Gary Beliveau appeals the trial court’s order denying his postconviction motion after an evidentiary hearing. We affirm that order. We take this opportunity to emphasize that the appointment of appellate counsel for postconviction proceedings is not a matter of right. When deciding whether to appoint postconviction appellate counsel, trial courts should be guided by the due process considerations described in Graham v. State, 372 So.2d 1363 (Fla.1979). See Gantt v. State, 714 So.2d 1116,1117 (Fla. 4th DCA 1998).

We also use this case as an opportunity to announce a change in procedure affecting the handling of postconviction appeals when appointed appellate counsel can find no arguable issue to brief. This court has been permitting counsel to file Anders briefs in these cases. After an Anders brief has been filed, we have followed procedures similar to the Anders procedures applicable to direct appeals of judgments and sentences. As explained in this opinion, we will now follow procedures comparable to those used in the First and Fourth Districts.

I. THIS CASE

Mr. Beliveau was convicted in 2008 of attempted felony murder with a weapon, burglary with an aggravated battery, and robbery with an aggravated battery. The charges arose from a criminal episode during which he stole an automobile from its owner. The owner was injured during the episode. The weapon for purposes of the felony murder charge and the deadly weapon for purposes of aggravated battery was the automobile. He is serving concurrent life sentences as a prison releasee reoffender for the attempted felony murder and the burglary, and a thirty-year term of imprisonment for the robbery.

Mr. Beliveau filed a notice of appeal from his judgments and sentences in 2008. His attorney filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) and later filed an Anders brief. Thereafter in June 2009, Mr. Beliveau filed a voluntary dismissal of his appeal without filing a pro se brief. See Beliveau v. State, 9 So.3d 623 (Fla. 2d DCA 2009).

In March 2010, he filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In the motion he raised three grounds: (1) that his attorney had been ineffective for failing to call the victim’s physicians as witnesses to testify that her broken ankle did not occur during the car theft; (2) that his attorney should have prevented the victim from testifying concerning her medical treatment; and (3) that his attorney should have filed a postconviction motion requesting a new trial because of a violation of the sequestration rule. The trial court summarily rejected ground (2) in a nonappealable order with attachments demonstrating that the victim’s medical condition was not a significant issue in the case because the battery was an aggravated battery due to the use of the vehicle as a weapon, not due to the victim’s injuries. The court concluded that the limited testimony concerning her treatment was either relevant to prove the battery or harmless in the overall context of the trial.

The trial court then ordered an eviden-tiary hearing on the two remaining grounds. The court appointed counsel to represent Mr. Beliveau. Several witnesses testified at the evidentiary hearing, including Mr. Beliveau and his trial counsel. The court denied relief following this hearing, and Mr. Beliveau filed a notice of appeal.

When the notice of appeal was filed, Mr. Beliveau’s postconviction counsel sent a letter to the trial court enclosing an order of insolvency that included language appointing the Public Defender for the Tenth Judicial Circuit to represent Mr. Beliveau on appeal. There is no separate motion for appointment of appellate counsel in our record, and the letter makes no legal showing to justify such appointment. It is likely that postconviction counsel believed that Mr. Beliveau was entitled to counsel merely on a showing of his insolvency.

The order requiring the appointment of counsel was signed by a judge who had handled no part of the earlier proceedings. Judge Maloney, who had presided over the postconviction hearing, undoubtedly would not have signed the order because he would have known that the allegedly ineffective trial counsel was a Public Defender for the Tenth Judicial Circuit. Due to this conflict, that office could not represent Mr. Beliveau on appeal. After the order of appointment was entered, the Public Defender moved to withdraw, and the court ultimately appointed the Office of Criminal Conflict and Civil Regional Counsel to represent Mr. Beliveau.

In October 2013, the appointed counsel filed an Anders brief with this court and the standard motion to withdraw that accompanies such a brief. This court issued its standard order, which provides the defendant with an opportunity to file his own pro se brief. Mr. Beliveau filed his pro se brief raising three issues.

This court has reviewed the briefing and the record. We have found no issue that merits relief or further review by this court. Accordingly, we affirm the order on appeal.

II. APPOINTMENT OF APPELLATE COUNSEL FOR POSTCONVICTION PROCEEDINGS

It is well established that the appointment of counsel to represent indigent defendants in postconviction proceedings relating to noncapital cases, including appellate proceedings, is not a statutory or constitutional right. See § 924.066(3), Fla. Stat. (2018); Gantt, 714 So.2d at 1116-17. “The question to be asked in a case of this nature is whether the assistance of counsel is essential to accomplish a fair and thorough presentation of the petitioner’s claims.” Schneeloclc v. State, 665 So.2d 1063, 1063 (Fla. 4th DCA 1995) (citing Hooks v. State, 253 So.2d 424, 426 (Fla. 1971)). Thus, a court’s decision to appoint counsel is based on individualized due process considerations, not on any constitutional right that applies across the board to a group of defendants.

In the trial court, the factors used to determine whether to appoint counsel in postconviction cases are listed in rule 3.850(f)(7). The factors in the rule derive from Graham, 372 So.2d 1363.

Under Graham v. State, 372 So.2d 1363 (Fla.1979), in deciding whether to appoint counsel for an indigent defendant filing a postconviction motion, the trial court should consider: (1) the adversary nature of the proceeding; (2) its complexity; (3) the need for an eviden-tiary hearing; and (4) the need for substantial legal research.

Ware v. State, 111 So.3d 257, 260 (Fla. 1st DCA 2013).

This court has previously observed that the Graham factors are not a perfect fit when making a discretionary decision to appoint appellate counsel for a postconviction appeal. See Roive v. State, I'll So.2d 1088, 1089 (Fla. 2d DCA 2001). The due process considerations important at the appellate level are simply different from those at the trial level. Certainly, the complexity of the case and the need for substantial legal research should play a role in deciding whether counsel should be appointed for appeal. If the appeal involves a novel question or an unresolved issue that is likely to create precedent affecting other defendants, counsel may be appropriate. The defendant’s questionable mental competence, illiteracy, or limited English language skills may add to the equation when other factors exist.

Without limiting the due process factors that a trial court might consider in the appointment of counsel, we hold that a case-specific determination is necessary. Thus, the appellant should file a motion in the trial court requesting the appointment of counsel and explaining the reasons why due process considerations warrant the appointment. In a case such as Mr. Beli-veau’s, where trial counsel has been appointed, it is entirely appropriate for that counsel to file both the notice of appeal and the motion for appointment of appellate counsel. Recognizing the limitations of pro se litigants, this court concludes that when making this decision, it is appropriate for the trial court to consider case-specific due process factors in addition to any alleged by the defendant.

III. REVIEW IN ANDERS-LIKE POSTCONVICTION CASES

The Fourth District announced in 1998 that it was not necessary for counsel to file Anders briefs in postconviction appeals. See Mayolo v. State, 714 So.2d 1124, 1124 (Fla. 4th DCA 1998). In Me-drano v. State, 795 So.2d 1009, 1010 (Fla. 4th DCA 2001), it announced that it would henceforth strike such briefs. In 2007, the First District adopted the same procedure. See Smith v. State, 956 So.2d 494, 495 (Fla. 1st DCA 2007).

This court has continued to accept An-ders briefs, arguably more as a matter of inertia than established policy. Appellate public defenders are familiar with that process, and it is undoubtedly comforting for an attorney who is committed to professionalism at least to attempt to describe issues that might warrant attention from the court.

Our major concern with continuing the process of accepting Anders briefs is the implicit agreement on the part of the court to conduct an independent review of the record in search of issues that might have merit. That review is required in direct appeals of judgments and sentences, where defendants have a Sixth Amendment right to counsel, but no constitutional provision requires this court to perform the review in a postconviction case, where decisions on appointing appellate counsel derive from individualized due process concerns. As a practical matter, the review consumes valuable judicial resources while rarely revealing an issue that results in any benefit for the defendant. We conclude that there is no justification for this court to perform such a review as a matter of course in these cases.

In cases involving termination of parental rights, where parents have a due process right to counsel, this court has implemented procedures permitting the appointed counsel to file a “sufficient” motion to withdraw, following which the parent is given a reasonable time in which to file a pro se brief. See T.R. v. Dep’t of Children and Families, 779 So.2d 292, 294 (Fla. 2d DCA 1998). We conclude that a similar procedure can be applied to these postconviction appeals.

Accordingly, if counsel concludes that he or she cannot sign and file a merits brief in good faith in a postconviction appeal, counsel shall file a motion to withdraw. That motion should not be a barebones motion, but rather should contain content demonstrating that counsel has fulfilled his or her obligation to the client but is unable, in good faith, to demonstrate the existence of an arguable issue. If counsel wishes, the motion, like an Anders brief, may contain a description of the facts and potential issues that counsel has considered and rejected.

Upon the filing of a sufficient motion to withdraw, this court will enter an order providing the defendant with the opportunity to file a pro se brief within forty-five days. The order will grant only a conditional withdrawal of counsel; counsel will remain of record so that he can still be called upon to serve if his services are needed. Cf Fla. R. Crim. P. 9.140(d)(2) (providing for conditional withdrawal of defense counsel in direct appeals). If a pro se brief is filed, this court will review the case on the issues presented in that brief. If the defendant fails to file a brief, the case will be dismissed.

These new procedures will take effect on the date that mandate issues in this case. They will apply to all cases in which briefs would otherwise be due on or after that date. Any Anders brief filed in a postcon-viction appeal after that date will be stricken by this court. Cases in which Anders briefs have already been filed will be processed by this court under the prior procedures.

WALLACE and SLEET, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The policy change announced in this opinion was approved by the entire court at a regular monthly conference in June 2014.

      . The factors in the rule are somewhat broader than those listed in Graham. Rule 3.850(f)(7) states:

        Appointment of Counsel. The court may appoint counsel to represent the defendant under this rule. The factors to be considered by the court in making this determination include: the adversary nature of the proceeding, the complexity of the proceeding, "the complexity of the claims presented, the defendant's apparent level of intelligence and education, the need for an evi-dentiary hearing, and the need for substantial legal research.

      . The Florida Rules of Appellate Procedure do not expressly state whether or how this court should review orders granting or denying appointment of counsel. As a matter of practice, this court treats the appointment of counsel in postconviction appeals as a procedural issue over which the trial court and this court have concurrent jurisdiction. See Fla. R. App. 9.600(a). Administratively, the motions are filed and addressed in the trial court. The order may then be reviewed by motion in this court under the supervisory control provided in rule 9.600(a).

      . The Public Defender for the Tenth Judicial Circuit, whose office handles the majority of postconviction appeals in which counsel are appointed, is not of record in this case. We recognize its potential interest in this decision and expressly authorize it to file a comment during the period for rehearing addressing sections II and III of this opinion.


author: WALLACE, Judge.

text:
    ST. CROIX LANE TRUST & M.L. Shapiro, Trustee, Appellant, v. ST. CROIX AT PELICAN MARSH CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 2D13-3636.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.
    Jeffrey Bluestein of Marc L. Shapiro, P.A., Naples, for Appellant.
    Todd B. Allen of Geode, Adamczyk & DeBoest, PLLC, Naples, for Appellee.
   WALLACE, Judge.

The owner of a condominium unit appeals a final summary judgment declaring that no accord and satisfaction occurred when the condominium association accepted a check that the unit owner tendered in full satisfaction of the association’s disputed claim for past due assessments and other charges. Because the circuit court erred in relying on section 718.116(3), Florida Statutes (2011), in ruling that an accord and satisfaction did not occur, we reverse the final summary judgment.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

St. Croix at Pelican Marsh Condominium Association, Inc. (the Association), filed an action to foreclose its lien on a condominium unit for past due assessments, interest, late fees, costs, and attorney’s fees. The Association obtained a final judgment of foreclosure, and the unit was scheduled for sale. The unit was subject to a first mortgage, and the Association elected not to bid at the sale. St. Croix Lane Trust (the Trust) was the successful bidder at the sale. On March 13, 2012, the clerk of the court issued and recorded a certificate of title in favor of the Trust.

The Trust bid $100 for the property at the sale. The $100 bid was insufficient to pay the amount of the Association’s foreclosure judgment. On March 21, 2012, the Association’s attorney wrote the Trust a letter demanding payment of $36,584.54. This figure included unpaid quarterly assessments against the unit for several years, accrued interest, late fees, a substantial balance for a delinquent water bill, costs, and attorneys fees. The Association also demanded payment of the quarterly assessment that fell due on January 1, 2012, the first day of the quarter during which the Trust took title to the unit. The Trust did not pay the amount demanded, and the Association filed a claim of lien against the unit. On May 7, 2012, the Association’s attorney sent a letter to the Trust demanding payment of $38,586.11, plus interest through the date of payment.

The Trust’s attorney responded in writing on May 18, 2012. The Trust disputed the amount of the Association’s claim. In the Trust’s view, its liability to the Association was limited to its share of the first quarterly assessment for 2012, prorated from March 13, 2012, the date that it took title to the unit. However, the Trust offered to pay the Association $840, the full amount of the first quarterly assessment, to settle the matter. In pertinent part, the letter from the Trust’s attorney to the Association’s attorney said:

At worst[,] my client only owes the pro rata first quarter assessment for the period of its ownership. However, in a good faith effort to resolve this matter I have enclosed herewith a check in the amount of $840.00 payable to your Trust Account for the full January 1, 2012 assessment. Be advised and warned, this check is tendered in full and final satisfaction of all claims made against the Trust and the property for the amounts demanded in your May 7, 2012 correspondence. Regardless of intent, negotiation of the enclosed check shall be deemed an acceptance of the offer of settlement made herein, and shall be in full and final satisfaction of all claims against the Trust and the property ... as more particularly set forth in your May 7, 2012 correspondence.

(Footnotes omitted.)

The parties (or their attorneys) evidently had a history that preceded the current dispute. On May 18, 2012, the Association’s attorney responded by e-mail to the Trust’s attorney as follows: “We’ve been through this argument before, so I’m not going to recite it here again. You know our position, and the case law[ ] used to support it. I have instructed my staff to apply this as a partial payment once it’s received (despite the restrictive endorsement).” In fact, the Association received the Trust’s check for $840 and negotiated it.

Despite its receipt and retention of the $840 tendered in settlement of its claims, the Association threatened to file an action to foreclose its claim of lien against the Trust’s condominium unit. The Trust responded by filing an action against the Association. The Trust’s complaint contained two counts. In count one, the Trust sought declaratory relief as follows: (1) an adjudication concerning whether it was obligated to pay the Association for the past due assessments and other amounts claimed; (2) an order discharging the Association’s claim of lien against the unit; and (3) an award of attorney’s fees and costs. In count two, the Trust sought damages for the loss of the rental value of the unit. The Trust alleged that the declaration of condominium authorized the Association to prohibit the leasing of a unit if the unit owner was delinquent in the payment of assessments when a unit owner submitted an application to lease a unit. The Trust alleged further that the submission of an application to' lease the unit would “be futile” under the circumstances.

II. THE CIRCUIT COURT’S RULING

The facts were essentially undisputed, and the parties filed cross-motions for summary judgment. In June 2013, the circuit court granted the Association’s motion for summary judgment as to count one and denied the Trust’s motion. In its order, the circuit court determined that the Trust'was jointly and severally liable with the previous unit owner for all amounts claimed by the Association through the date of the foreclosure sale, less the $840 payment. The circuit court’s ruling was as follows:

1. Florida Statutes Section 718.116(l)(a) provides that a parcel owner, regardless-of how his or her title to property was acquired, including by purchase at a foreclosure sale, is jointly and severally liable with the previous parcel owner for all unpaid assessments that came due up to the time of transfer of title. The common law doctrine of merger is inapplicable in this instance.

2. [The Trust] acquired title to the subject property by purchase at a foreclosure sale. Therefore, [the Trust] became jointly and severally liable with the prior owner for unpaid assessments that were due and owing to [the Association] when [the Trust] took title to the subject property, pursuant to Florida Statutes Section 718.116(l)(a).
3. By operation of § 718.116(3), Fla. Stat. [the Association’s] acceptance of a payment from [the Trust] as an accord and satisfaction was ineffective to satisfy [the Association’s] claims against [the Trust] for amounts in excess of the amount paid.
4. The assessments for which the [Trust] is jointly and severally liable with the previous owner to the [Association] include interest, costs, late fees[,] and attorney’s fees.

In July 2013, the circuit court entered a final judgment in accordance with its prior order. The final judgment dismissed count two of the Trust’s complaint with prejudice. This appeal followed.

III. THE TRUST’S ARGUMENTS

On appeal, the Trust raises three arguments. First, the Association’s negotiation of the Trust’s check that was tendered in full satisfaction of the Association’s claims resulted in an accord and satisfaction. Second, the Association’s claim for the assessment and other charges that accrued before the Trust acquired title to the unit was extinguished by the common law doctrines of merger and estoppel. Finally, and in the alternative, the Trust’s liability to the Association was limited to the past due assessments only, exclusive of interest, late fees, interest, utility expenses, costs, and attorney’s fees. We need address only the issue of accord and satisfaction. Our standard of review is de novo. Volu-sia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000).

IV. DISCUSSION

Section 673.3111, Florida Statutes (2011), “Accord and satisfaction by use of instrument,” provides, in pertinent part, as follows:

(1) If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliq-uidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, the following subsections apply.
(2) Unless subsection (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

None of the exceptions provided for in the statute are applicable here. When the Association negotiated the Trust’s check that was tendered in full and final satisfaction of the Association’s disputed claim, an accord and satisfaction resulted. See Miller-Dunn Co. v. Green, 154 Fla. 72, 16 So.2d 637, 638 (1944); United Auto. Ins. Co. v. Palm Chiropractic Ctr., Inc., 51 So.3d 506, 509 (Fla. 4th DCA 2010); Martinez v. S. Bayshore Tower, L.L.L.P., 979 So.2d 1023, 1024 (Fla. 3d DCA 2008). If the Association did not wish to accept the $840 check in full settlement of its claims in accordance with the Trust’s conditional tender, then it should have returned the check instead of negotiating it. See The Burke Co. v. Hilton Dev. Co., 802 F.Supp. 434, 439 (N.D.Fla.1992) (applying Florida law). “Simply put, the [Association] cannot have [its] cake and eat it too.” Id.

The Association argues that section 718.116(3) of the Condominium Act requires a different result. Section 718.116(3) provides as follows:

Assessments and installments on assessments which are not paid when due bear interest at the rate provided in the declaration, from the due date until paid. The rate may not exceed the rate allowed by law, and, if no rate is provided in the declaration, interest accrues at the rate of 18 percent per year. If provided by the declaration or bylaws, the association may, in addition to such interest, charge an administrative late fee of up to the greater of $25 or 5 percent of each delinquent installment for which the payment is late. Any payment received by an association must be applied first to any interest accrued by the association, then to any administrative late fee, then to any costs and reasonable attorney’s fees incurred in collection, and then to the delinquent assessment. The foregoing is applicable notwithstanding any restrictive endorsement, designation, or instnction placed on or accompanying a payment.

A late fee is not subject to chapter 687 or s. 718.808(4).

(Emphasis added.) In the Association’s reading of the statute, the penultimate sentence of subsection three protects a condominium association against a claim of accord and satisfaction when it negotiates a check tendered in payment of claim for assessments and related charges. We disagree. We interpret the statutory language to mean that the condominium association must apply such payments to amounts due in accordance with the statutory command without regard to any accompanying instructions to the contrary. We do not think that the legislature intended the penultimate sentence of subsection three to amend section 678.3111 tacitly or to otherwise alter the law of accord and satisfaction in favor of condominium associations when they accept payments for assessments and related charges.

The pertinent legislative history confirms our interpretation of the statute. The language in question was added to subsection three of section 718.116 by chapter 91-103, section 9, at 735, Laws of Florida (1991). The staff analyses for the House and Senate explain the purpose of the amendment as follows:

Subsection (3) [of section 718.116] addresses the late fee which is charged for unpaid assessments. Currently the fee can be the greater of $25 or 5 percent of the assessment. Language is added to provide that the late fee applies to each installment. Currently, the statute provides a formula which determines how payments are to be applied, with payments first applied to interest, then to late fees, then to costs and attorney[’]s fees[,] and then to delinquent assessments. This bill would apply this statutory formula even if the check which was tendered contained a restrictive endorsement which provided some other formula for payment.

Fla. H.R. Comm, on Judiciary, CS for HB 1465 (1991) Staff Analysis 12 (Mar. 28, 1991); Fla. S. Comm, on Fin. & Tax, CS for SB 1408 (1991) Staff Analysis 7 (Apr. 19, 1991) (available at Fla. Dep’t of State, Fla. State Archives, Tallahassee, Fla.) (emphasis added). Thus the staff analyses confirm that the pertinent language was added to subsection three to invalidate restrictive endorsements that provide a formula for the application of payments other than that set forth in the statute. There is nothing in the staff analyses suggesting that the amendment was intended to make section 673.3111 inapplicable to condominium associations or that the amendment would otherwise alter Florida law concerning accord and satisfaction solely for the benefit of condominium associations.

We recognize that part of the discussion in Ocean Two Condominium Ass’n v. Kli-ger, 983 So.2d 739 (Fla. 3d DCA 2008), can be read to interpret section 718.116(3) differently. We think that the Third District reached the correct result in Kliger. However, we do not find its discussion of section 718.116(3) persuasive here for two reasons. First, the monthly maintenance payments for which the unit owners tendered their payments in Kliger were conceded to be due and were not subject to any dispute. Id. at 741. Here, there was a bona fide dispute about the amounts for which the Trust was liable. This fact is sufficient to distinguish Kliger from the case under review.

Second, it does not appear from the discussion in Kliger that the Third District had the benefit of the pertinent legislative history as an aid to its interpretation of section 718.116(3) when it issued the opinion in that case. We are inclined to believe that if the Third District had considered the legislative history, its discussion of the purpose and effect of the statute might have been different.

Before concluding, we also note that the undisputed nature of the condominium association’s claims in Kliger rendered any consideration of the role of the statute in protecting a condominium association from prejudice or jeopardy by acceptance of a partial payment unnecessary to the Third District’s decision in that case. In short, the discussion in Kliger on which the Association relies so heavily here in support of an affirmance is only dicta.

V. CONCLUSION

For the foregoing reasons, we reverse the circuit court’s summary judgment order and the final judgment entered in accordance with it. On remand, the circuit court shall enter a partial summary .judgment declaring that any obligations of the Trust to the Association for amounts that became due before the Trust acquired title to the property were discharged by an accord and satisfaction. In addition, the partial summary judgment to be entered shall also declare that the Trust is entitled to have the Association’s claim of lien against the condominium unit in question cancelled and vacated. The Trust’s claim for the lost rental value of the unit as asserted in count two of the complaint remains to be resolved on remand.

Reversed and remanded with directions.

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

      . We assume that the "case law” referenced here is Ocean Two Condominium Ass'n v. Kliger, 983 So.2d 739 (Fla. 3d DCA 2008).


author: KELLY, Judge.

text:
    The LEILA CORPORATION OF ST. PETE, a Florida corporation, Susan J. Agia, Individually and as trustee of the Susan J. Agia Living Trust, and Dr. Raymond Agia, Petitioners, v. Fareed OSSI and Ossi Consulting Engineers, Inc., a Florida corporation, and Ossi Construction, Inc., a Florida corporation, Respondents.
    No. 2D14-1960.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.

      Arnold D. Levine and Robert H. Mackenzie of Arnold D. Levine & Associates, P.A., Tampa, for Petitioners.
    Stuart Jay Levine and Heather A. De-Grave of Walters Levine Klingensmith & Thomison, P.A., Tampa, for Respondents Fareed Ossi, Ossi Consulting Engineers, Inc., and Ossi Construction, Inc.
    David A. Rowland, General Counsel, Thirteenth Judicial Circuit, Tampa, for Respondent James M. Barton, II.
   KELLY, Judge.

In this petition for writ of prohibition, the petitioners assert that Judge James M. Barton, II, erroneously denied their motion to disqualify him as legally insufficient. We reject that argument. The petitioners alternatively argue that Judge Barton did not rule on their motion within thirty days of service of the motion as prescribed by Florida Rule of Judicial Administration 2.330(j), and thus their motion should have been “deemed granted.” We also reject that argument and hold that the petitioners’ service of the motion to disqualify did not comport with the rules; thus, Judge Barton’s denial order was timely entered within thirty days of the date on which he actually became aware of the motion. For the following reasons, we deny the petition for writ of prohibition.

The underlying background facts in this case are somewhat convoluted and mostly irrelevant to this decision. Suffice it to say that on October 11, 2012, Judge Barton entered a final judgment against the petitioners, finding that both the petitioners and .the respondents engaged in a scheme to defraud one petitioner’s creditors. The court found that “the parties candidly admitted that they participated in the plan to hide Dr. Agia’s assets from a potential personal injury judgment creditor.” Accordingly, rather than considering the merits of the multiple claims and counterclaims in the lawsuit, Judge Barton entered judgments providing no relief to any party, based on the doctrine of unclean hands. The petitioners appealed to this court, and on January 17, 2014, this court reversed and remanded for additional proceedings. Leila Corp. of St. Pete v. Ossi, 138 So.3d 470 (Fla. 2d DCA 2014). On January 23, 2014, within ten days of the entry of this court’s opinion, the petitioners filed a motion to ..disqualify Judge Barton, asserting that “it is clear from the provisions of the Final Judgment dated October 11, 2012, that although there is no basis in law or fact as evidenced by the opinion of the Second District Court of Appeal dated January 17, 2014, Judge Barton unquestionably believes that the Plaintiffs engaged in a conspiracy to defraud.” Judge Barton did not receive this motion until March 3, 2014. On March 24, 2014, Judge Barton denied the motion to disqualify as facially insufficient. The petitioners filed a motion to vacate that order, which the judge denied on April 10, 2014.

At the outset, we note that although Judge Barton did not question the timing of the petitioners’ motion to disqualify in denying the motion, it appears that any concerns the petitioners had about bias against them should have been raised in October 2012, when the final judgment was entered, yet they waited until this court reversed Judge Barton’s ruling to file their motion to disqualify. This court’s ability to second-guess the timeliness of the motion when it was not specifically deemed untimely by the circuit judge may be circumscribed. See Santa Catalina Tovmhomes, Inc. v. Mirza, 942 So.2d 462, 464 (Fla. 4th DCA 2006) (en banc). But our analysis does not depend on the timeliness of the motion, as it is clear that the facts alleged in the motion do not demonstrate that Judge Barton was personally prejudiced against the petitioners or that reasonable persons in their position would fear not receiving a fair trial on remand “because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(d)(1). Rather, Judge Barton made an adverse ruling (subsequently overturned by this court) in the exercise of his legitimate judicial function. See Santisteban v. State, 72 So.3d 187, 194 (Fla. 4th DCA 2011) (“The fact that the judge has made adverse rulings against the [movant] in the past is not an adequate ground for recusal, nor is the mere fact that the judge has previously heard the evidence.”); Claughton v. Claughton, 452 So.2d 1073, 1073-74 (Fla. 3d DCA 1984) (“We cannot on the record before us conclude that the statements set forth in the final judgment upon which the petitioner based her application to disqualify the trial judge were so unrelated to the issues being tried as to constitute other than adverse judicial rulings which under well-settled law are not a basis for disqualification for bias or prejudice.”).

Regardless of the timing, the motion to disqualify was procedurally deficient as well as facially insufficient. First, it did not contain a certificate of service on Judge Barton, even though rule 2.330(c) specifically requires the movant immediately to serve a copy of the motion on the judge. We agree with Judge Barton’s finding, in an order denying the petitioners’ motion to vacate the order denying their motion to disqualify, that the lack of a certificate of service in and of itself is not fatal. See Overcash v. Overcash, 91 So.Sd 254, 255 (Fla. 5th DCA 2012). But the means of service was legally flawed.

The undisputed fact is that the petitioners attempted to serve a copy of the motion on Judge Barton by leaving it in a multi-slot drop-box in a public hallway of the courthouse on January 23, 2014. Next to the drop-box is an intercom for communication with the judges’ judicial assistants. The petitioners assert that they validly assumed that this drop-box was meant to serve as a depository for the required service of their motion for disqualification on the judge. However,Judge Barton did not actually receive a copy of the motion until March 3, 2014, and he did not even know of the existence of the motion prior to February 27, 2014, when the petitioners transmitted a copy of a proposed order of disqualification to him.

The reason for the rule requiring service of a motion to disqualify on the judge is to insure that the judge is actually aware of the existence of the motion. See Tobkin v. State, 889 So.2d 120, 122 (Fla. 4th DCA 2004). In this case, Judge Barton was not actually aware of the existence of the motion until over thirty days after it had been filed. This was due to the means of service chosen by the petitioners, which was not only actually ineffective but procedurally improper.

' Rule 2.330(c) requires the movant who files a motion to disqualify a judge to “immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.” Rule 1.080(a), in turn, directs that all documents filed in an action “must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516,” which provides that virtually all service is to be by e-mail, with certain limited exceptions applicable to parties not represented by an attorney. Specifically, rule 2.516(b)(1)(C) provides that if a party is not represented by an attorney, that party may nevertheless designate an e-mail address for service. In the case of a party who has not designated an e-mail address, other specific options for service are set out in rule 2.516(b)(2).

We realize that Judge Barton is not a party to this lawsuit. However, because they are required to be served in accordance with these rules, judges should probably be considered to be parties to the proceedings on motions to disqualify, particularly since the service rules speak basically only to service on attorneys, parties with designated e-mail addresses, and parties not represented by attorneys who do not have designated e-mail addresses. In denying the petitioners’ motion to vacate the order denying their motion to disqualify, Judge Barton observed that the petitioners could have served him electronieally through the Thirteenth Judicial Circuit’s scheduling and case management service (JAWS), by e-mailing his judicial assistant, or by e-mailing him personally at the address provided in The Florida Bar’s online directory. Our view is that these are all reasonable alternatives and that e-mail service on a judge in this context should probably be required, but that is not the basis for our ruling.

Rather, even if the rules cannot be interpreted to require e-mail service on Judge Barton, several alternatives are set out for service other than by e-mail. Rule 2.516(b)(2) provides that “[sjervice on and by all parties who are not represented by an attorney and who do not designate an e-mail address ... must be made by delivering a copy of the document or by mailing it to the party ....” Delivery is accomplished by handing it to the party, leaving it at the party’s office with a clerk or other person in charge, or, “if there is no one in charge, leaving it in a conspicuous place therein.” Rule 2.516(b)(2)(C) (emphasis supplied). Alternatively, delivery may be accomplished by means of facsimile transmission. These rules plainly do not contemplate the means of delivery that the petitioners attempted to use in this case— a drop-box in a publicly accessible hallway. The 1967 Authors’ Comment to rule 1.080 reinforces our interpretation of the current version of the rules. The authors went to some lengths to describe what was necessary to insure that the motion or other pleading or paper was actually delivered to the party:

It should be noted that the copy must be left with the clerk or person in charge of the office when that person is in the office so that giving it to such person in the hall or elevator or giving it to a clerk at the courthouse would not be a valid service within the meaning of the rule....
Where no one is in charge of the office, delivery may be made by leaving the copy in a conspicuous place. This provision covers the case where everyone is out of the office but the door is left open .... The copy must be left in the office and cannot be left outside and probably could not be left on the threshold.

Fla. R. Civ. P. 1.080 cmt. (1967). These comments are not only instructive but also reflect a common-sense interpretation of the meaning of actual delivery to a party’s office — the motion must be left within the office.

Moreover, on his page on the Thirteenth Judicial Circuit website, Judge Barton has outlined certain instructions under the Procedures/Preferences tab. At the conclusion of this page, in bold capitalized type, is this note: PLEASE SUBMIT ALL MOTIONS AND ORDERS DIRECTLY TO THE PRESIDING JUDGE’S OFFICE ROOM # 516. http:// www.fljudl3.org/JudicialDireetory/James MBarton,II/ProceduresPreferences.aspx (last visited July 17, 2014). There is nothing about the drop-box on his website, and a finding that this hallway drop-box should be deemed an extension of the judge’s office would strain the meaning and distort the intent of the applicable rules.

Accordingly, we hold that the petitioners’ motion to disqualify Judge Barton was legally insufficient and he correctly denied it as such. Furthermore, because service was not accomplished in accordance with rules 1.080 and 2.516, the thirty-day time within which Judge Barton was required to rule on the motion did not run until he actually received it. Accordingly, the automatic grant provision of rule 2.330(j) was not triggered.

The petitioners’ petition for writ of prohibition is denied.

WALLACE and KHOUZAM, JJ., Concur.

      . The description of the drop-box was provided in a response on behalf of Judge Barton, filed by the Thirteenth Judicial Circuit court counsel, as well as in the Ossi respondents’ response. We note that in his response, Judge Barton did not address the facial sufficiency of the motion to disqualify or take any issue with any facts recited in the petitioners' motion or petition. Thus, Judge Barton has not taken an adversarial position requiring his disqualification by filing a response in this court. Cf. Ellis v. Henning, 678 So.2d 825, 827 (Fla. 4th DCA 1996) (”[W]e are compelled to grant the writ of prohibition because the responses, filed on behalf of the trial judge by an assistant attorney general ... imper-missibly took issue with the accuracy of plaintiffs’ allegations.”).

      . We note, however, that Judge Barton is a party to the proceedings in this court by virtue of the filing of the petition for writ of prohibition, although his name is omitted from the caption. See Fla. R. App. P. 9.100(e)(2).


author: PER CURIAM.

text:
    Marvin James BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1659.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2014.
    Robert Wesley, Public Defender, and Javier Chavez, Assistant Public Defender, Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Kaylee D. Tatman, 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 judgment and sentence in Case No. CF13-7580-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER and COHEN, JJ., concur.


author: KHOUZAM, Judge.

text:
    Angel Manuel NIEVES, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3809.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.

      Lee Hollander of Law Offices of Hollander and Hanuka, Naples, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

KHOUZAM, Judge.

Upon remand from the Florida Supreme Court, we reconsider Angel Manuel Nieves’ conviction for second-degree murder in light of the subsequent decision in Haygood v. State, 109 So.3d 735 (Fla.2013). Because the giving of the erroneous instruction on the lesser included offense of manslaughter by act did not pertain to a disputed element of the offense, we conclude that no fundamental error occurred and therefore affirm.

In 2008, Nieves was convicted by a jury of second-degree murder and sentenced to life in prison. Without objection, his jury was given the then-standard instructions which were later found to be fundamentally erroneous in State v. Montgomery, 39 So.3d 252 (Fla.2010) (.Montgomery II). The jury was also instructed on manslaughter by culpable negligence.

But the Florida Supreme Court’s decision in Montgomery II had not yet been penned when Nieves filed his direct appeal. At that time, this court had concluded that the instructions were not fundamentally erroneous and had certified conflict with the First District’s contrary opinion in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009) (Montgomery I). See Zeigler v. State, 18 So.3d 1239, 1245-46 (Fla. 2d DCA 2009), quashed, 75 So.3d 236 (Fla.2011). Based on Zeigler, this court affirmed Nieves’ judgment and sentence on the grounds that the instruction was not fundamentally erroneous and that his case was distinguishable from Montgomery I because Nieves’ jury was also instructed on manslaughter by culpable negligence. Nieves v. State, 22 So.3d 691, 692 (Fla. 2d DCA 2009).

After the supreme court issued its opinion in Montgomery II finding the instruction fundamentally erroneous, it ordered the State to show cause why the opinion in Nieves’ case should not be quashed and remanded for reconsideration in light of this development. Nieves moved the supreme court to retain jurisdiction until it had decided the related issue of whether the instruction on manslaughter by culpable negligence negated the error caused by the fundamentally erroneous instruction. The supreme court granted the request and stayed proceedings in Nieves’ case.

Thereafter, the supreme court issued its opinion in Haygood. It held that “giving the erroneous manslaughter by act instruction ... is also fundamental error even if the instruction on manslaughter by culpable negligence is given where the evidence supports manslaughter by act but does not support culpable negligence and the defendant is convicted of second-degree murder.” 109 So.3d at 737. Consequently, the supreme court quashed this court’s opinion in Nieves and remanded for reconsideration in light of Haygood. Nieves v. State, 137 So.3d 1021 (Fla.2014) (unpublished table decision).

In Haygood, the supreme court observed that it has “long held that fundamental error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.” 109 So.3d at 741. The court “reiterated ... that it is fundamental error to give a standard jury instruction that contains an erroneous statement as to an element of the crime which is disputed.” Id. (emphasis added) (citing Reed v. State, 887 So.2d 366, 369 (Fla.2002)). Where the defendant concedes the facts of the crime, arguing only that it was committed by somebody else, no such dispute arises. See Battle v. State, 911 So.2d 85, 89 (Fla.2005) (citing State v. Delva, 575 So.2d 643, 645 (Fla.1991)); see also Morton v. State, 459 So.2d 322, 324 (Fla. 3d DCA 1984) (“[Wjhere the only real issue put to-the jury for its determination was whether the defendant was the person who committed the conceded [crime], it is inconceivable that the failure to instruct the jury on the elements of [the crime] prejudiced the defendant or that such an instruction would have made any difference in the jury’s verdict.”). This rule has been specifically applied to the erroneous manslaughter instruction. See Griffin v. State, 128 So.3d 88, 90 (Fla. 2d DCA 2013) (“Because there was no dispute regarding the element of intent, the erroneous jury instruction on the intent element of the lesser included offense of manslaughter did not constitute fundamental error.”), review granted, No. SC13-2450, 2014 WL 700611 (Fla. Feb. 17, 2014).

Here, Nieves conceded at trial that the victim was murdered but claimed that somebody else did it. His counsel argued during closing that the physical evidence indicated that Mr. Adams, the other man at the scene of the crime, was “the person who killed her. He is the one that cut her throat.” Instead of disputing intent, Nieves plainly argued that “Mr. Adams is the perpetrator of this crime.” Under these circumstances, because the element of intent was not in dispute at trial, the erroneous manslaughter instruction did not constitute fundamental error and we therefore affirm.

Affirmed.

WALLACE and MORRIS, JJ„ Concur.


text:
    Tjada T. SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D12-5937, 2D12-6016.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.

      Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

In this consolidated appeal, Tjada T. Smith appeals adjudications of guilt for contempt of court and the sentences imposed thereon in two cases. The State concedes reversible error as to one of the two cases. We reverse the adjudications of guilt and sentences in both cases due to fundamental error that occurred as a result of a legally deficient order to show cause in this indirect criminal contempt proceeding.

Apparently, Ms. Smith reported to law enforcement that she was the victim of one or more offenses allegedly committed by a Mr. Brown, which resulted in the State filing charges against him in either or both trial court case numbers 12-CF-5210 and 12-CF-5263. The trial court clerk’s docketing statements for those cases reflects that the charge in case number 12-CF-5210 was aggravated assault with a deadly weapon and the charges in case number 12-CF-5263 were throwing a deadly missile at, within, or into a vehicle; burglary of a conveyance with assault or battery; and aggravated battery with a deadly weapon. Ms. Smith did not appear on September 24, 2012, the day that a trial was scheduled in case number 12-CF-5210 and perhaps in case number 12-CF-5263.

The State dropped the charges in both cases. It immediately initiated contempt proceedings against Ms. Smith, apparently by making an oral motion for an order to show cause. The appellate record reveals only limited information about how the State presented its motion. A transcript of the proceeding or proceedings at which the State made its oral motion and presented its argument for the issuance of an order to show cause was not included in the appellate record. It appears that the State did not file a written motion, an affidavit, or any sort of verified pleading in support of or requesting the issuance of an order to show cause. Several days after the scheduled trial, the trial court issued a single order to show cause directed to Ms. Smith. That order is styled as “State of Florida [v. Brown],” case numbers 2012-CF-5210 and 2012-CF-5263. Significantly, the order to show cause makes no reference to “contempt.” The body of the order states, in pertinent part:

THIS CAUSE coming on for approval of the Court, and the Court being advised by The State of Florida that the State’s Witness, Tjada Theresa Smith, was served with a subpoena on August 2nd, 2012 for Jury Trial the week of September 24th, 2012 by CSA # 3455. On the referenced subpoena date; September 24th, the witness failed to appear before this court for jury trial it is
ORDERED AND ADJUDGED that the said Tjada Theresa Smith, is to appear ... and show cause why she failed to appear.

A hearing on the order to show cause was held on November 1, 2012. Ms. Smith attended this hearing with her attorney. No evidence was introduced and no testimony was presented by either the State or Ms. Smith during the portion of the hearing concerning Ms. Smith’s failure to appear. Ms. Smith’s attorney argued that Ms. Smith was not served with the subpoena and thus she did not willfully and knowingly fail to appear. The trial court indicated that the return of service was part of the court file and concluded that the defense was not legally sufficient. It orally found that Ms. Smith “failed to appear as noticed on the date and time in question which appeared to be September 24, 2012 at 8:00 for a jury trial [in] the cause [Brown,1 case number 12-5210.” Based on the foregoing finding, the court determined “[t]hat as a consequence she is in contempt of court.” The trial court did not mention case number 12-CF-5263 in its oral finding, despite the fact that the prosecutor had listed the three counts in that case when asked by the trial court to describe the nature of the underlying charges.

After the trial court determined that Ms. Smith was in contempt of court, the State requested that the court impose some period of jail time. The court then heard Ms. Smith’s testimony with respect to mitigation and the sanctions to be imposed. It delayed sentencing to give Ms. Smith an opportunity to make arrangements for the care of her young children.

A sentencing hearing was held on November 14, 2012. At that hearing the prosecutor requested that Ms. Smith be sentenced to either a few days in jail or a short term of probation. The trial court orally pronounced that Ms. Smith was to be sentenced to sixty days’ probation and that during her probation she was to complete a domestic violence course.

On the same day as the sentencing hearing, the trial court rendered a written “Judgment and Sentence” in case number 12-CF-016434 and a separate written “Judgment and Sentence” in case number 12-CF-016436, which were not the same case numbers as the case numbers for the underlying criminal charges against Mr. Brown. Apparently,' the clerk of the trial court had created new court files with new case numbers for the purpose of the contempt proceedings, but the parties in this appeal have not explained, and the record does not reveal, the correlation of the new case numbers to the case numbers for the underlying charges against Mr. Brown. While both of these judgments listed the charges against Ms. Smith as “contempt of court,” they did not indicate whether the trial court adjudicated Ms. Smith guilty or whether it withheld adjudication. Additionally, neither judgment contained “a recital of the facts constituting the contempt of which the defendant [had] been found and adjudicated guilty.” Fla. R. Crim. P. 3.840(f). After Ms. Smith’s notices of appeal were filed in each of these cases, the trial court rendered a separate single order of probation that adjudicated her guilty of “contempt of court” in the two separate cases.

The trial court never identified the type of contempt for which Ms. Smith was adjudicated guilty. However, in this district when a subpoenaed witness is not tardy, but actually does not appear at a court proceeding, any effort to bring the missing witness into court to establish that her nonappearance was an act of willful contempt must be addressed under the rules applicable to indirect criminal contempt. See Kelley v. Rice, 800 So.2d 247, 253 (Fla. 2d DCA 2001). This is true because the witness is not present in the courtroom to allow for a summary proceeding and the acts that may or may not make the nonappearance a willful contempt necessarily occurred outside the courtroom.

The State concedes that because the record does not reflect the reason Ms. Smith was found in contempt in one of the two cases, the “order” in the “second” case must be vacated. Unfortunately, on this record, it is not entirely clear which case number should be considered the “second” case. One difficulty in making this determination arises from the shift in case numbers. Another difficulty arises from the confusion in the record regarding which of Mr. Brown’s cases was set for a trial and required Ms. Smith’s testimony as the victim.

Without regard to the error that the State concedes, it is clear to us that the contempt proceedings were fundamentally flawed from the moment of their initiation by the State. Fundamental error occurred at that early stage of the proceeding with the issuance of a legally deficient order to show cause. See Mix v. State, 827 So.2d 397, 399 (Fla. 2d DCA 2002). Rule 3.840 governs the prosecution of indirect criminal contempt proceedings. With respect to orders to show cause, it provides:

A criminal contempt, except as provided in rule 3.830 concerning direct con-tempts, shall be prosecuted in the following manner:
(a) Order to Show Cause. The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.

Fla. R. Crim. P. 3.840(a).

Here, it is arguable that the order stated the essential facts constituting the criminal contempt charged, but it did not direct Ms. Smith that she was to show cause why she “should not be held in contempt of court” and nothing on the face of the order indicated that she was being charged with criminal contempt of court. Without regard to these deficiencies, predicating the finding of contempt on the State’s unsworn motion for an order to show cause amounted to fundamental error in this case. See Proctor v. State, 764 So.2d 752, 753 (Fla. 2d DCA 2000). We reach this conclusion because the criminal contempt proceeding was initiated by the State, rather than by the judge, and the essential facts were not supported by an affidavit, as required by rule 3.840(a), or a suitable alternative to support the order to show cause, such as a verified pleading. See Starchk v. Wittenberg, 411 So.2d 1000, 1001 (Fla. 5th DCA 1982) (holding that an unverified pleading was insufficient to support the request for an order to show cause, but observing that “[sjince a prosecuting attorney is allowed to verify an information on sworn facts given him by a person with personal knowledge, such verification has been held sufficient when the prosecuting attorney is charging a criminal contempt of court”). Based on this fundamental error, we reverse Ms. Smith’s adjudications of guilt for contempt of court and her sentences on those adjudications in both cases. Our reversal is without prejudice to the initiation of new proceedings that conform with rule 3.840. See Mix, 827 So.2d at 399.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.

      . The initial record on appeal, which included a first supplemental record, contained little from Mr. Brown's criminal court files. The critical subpoena and related return were not in the initial record. Because of this and other deficiencies in the appellate record, this court sua sponte ordered the record supplemented. The second supplemental record, which was provided in response to our order, includes copies of two subpoenas for deposition directed to Ms. Smith and returns of service for those subpoenas, but it does not include a copy of the subpoena for trial and the related return of service. Thus, the record contains no evidence that Ms. Smith was ever served with a trial subpoena.

      . When asked the nature of the charges, the prosecutor responded "Count One throwing a deadly missile within and to a vehicle. Count Two burglary of a conveyance with assault or battery. Count Three aggravated battery with a deadly weapon.” These charges track those listed in the trial court clerk’s docketing statement for case number 12-CF-5263.

      . Failure to comply with rule 3.840(f) is not necessarily reversible error, but, as this case demonstrates, it can result in a record that is confusing. See Gidden v. State, 613 So.2d 457, 460 (Fla. 1993) (addressing the predecessor to rule 3.840(f), the court stated that "the rule’s purpose is fulfilled when sufficient oral findings are made on the record”).

      . But see J.D.J. v. State, 120 So.3d 229, 230 n. 1 (Fla. 4th DCA 2013) (opining that, absent an adequate excuse for nonappearance, a defendant's failure to appear may be summarily punished as direct criminal contempt and recognizing that in Kelley the Second District disagreed with the Fourth District’s position on this point); Speer v. State, 742 So.2d 373, 373 (Fla. 1st DCA 1999) (opining that the failure to appear in court pursuant to a court order can constitute direct criminal contempt); Porter v. Williams, 392 So.2d 59, 60 (Fla. 5th DCA 1981) (same); James v. State, 385 So.2d 1145, 1145 (Fla. 3d DCA 1980) (explaining that an attorney’s failure to appear at a scheduled court hearing "may be a direct criminal contempt or, if explained, may be shown not to be contemptuous”). See also Martinez v. State, 799 So.2d 313, 314-15 (Fla. 2d DCA 2001) (recognizing a split in authority as to whether a failure to appear constitutes indirect criminal contempt rather than direct criminal contempt, but declining to decide whether the appellant’s failure to appear was direct or indirect contempt because reversal was required due to lack of proof).

      . In the likely event that Ms. Smith has served her sentences in full, she may not be resen-tenced. Additionally, service of her sentences does not render this appeal moot. See Sra-mek v. State, 946 So.2d 1235, 1236 (Fla. 2d DCA 2007).


author: DAVIS, Chief Judge.

text:
    Cortez SMALLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6079.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.
    Appeal from the Circuit Court for Pinel-las County; Keith Meyer, Judge.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Chief Judge.

Cortez Smalls challenges his convictions and sentences for two counts of robbery and one count each of throwing a deadly missile at or into an occupied vehicle, obstructing or resisting an officer without violence, and failure to appear. We reverse.

The charges against Smalls were brought in four separate cases, but Smalls entered negotiated no contest pleas to the charges at one plea hearing. Pursuant to an agreement put forth by the trial court, Smalls’ sentences would be' capped at fifteen years. Smalls subsequently filed a motion to withdraw his pleas before sentencing. At the hearing on the motion, after the trial court spoke to Smalls about the maximum sentences he would face were he to go to trial, Smalls exited the courtroom to discuss the matter with his attorney. Upon returning to the courtroom, defense counsel affirmatively stated to the court that Smalls no longer wished to withdraw his pleas. The trial court, however, insisted on granting the motion and set aside Smalls’ pleas. Upon subsequent entry of open guilty pleas before a different trial judge, Smalls was sentenced to twenty-year prison sentences on the two robbery counts, to fifteen years on the throwing a deadly missile count, to five years on the failure to appear count, and to time served on the misdemeanor resisting, with all sentences to run concurrently.

Smalls then filed a motion to withdraw his second plea, arguing among other things that his second plea was involuntary because he “had not withdrawn] his [first] plea ... and had wished to enter a plea [then]” and that the trial court “did not have grounds nor the authority to withdraw [his first] plea without the Defendant’s consent.” He further alleged in his motion that the trial court was without authority to accept his second plea “because double jeopardy had attached upon acceptance of the previous plea.” The trial court denied this motion, determining that the previous plea had been properly set aside. We disagree.

First, we note that Smalls is correct that “jeopardy attaches once a trial court accepts a defendant’s plea.” Zamora v. State, 737 So.2d 1165, 1166 (Fla. 2d DCA 1999). And “[a]fter acceptance of a plea, the trial court may not set aside that plea without legal cause.” Id. (emphasis added).

Here, it is clear from the record that Smalls’ first plea was accepted by the trial court. Therefore, the question becomes whether the trial court had a legal cause to set aside Smalls’ first plea. At the hearing on Smalls’ motion to withdraw that plea, after the trial court explained to Smalls that he had a plea agreement capped at fifteen years on each of two robbery counts which carry a maximum of thirty years and that he had made a post-Miranda confession to the two robberies, Smalls left the courtroom with his attorney for further consultation. Upon returning to the courtroom, the trial court expressed concern that Smalls’ motion to withdraw plea was based on his feeling that counsel had rushed him into entering the plea and that therefore Smalls had some sort of conflict with his counsel.

However, this does not constitute legal cause to set aside the plea because, as defense counsel pointed out, the remedy for that situation would have been to appoint conflict-free counsel for Smalls and proceed with a hearing on the motion. But the trial court did not do that and instead ruled on a motion to withdraw plea that already had been abandoned by Smalls. This was error. Cf. State ex rel. Wilhoit v. Wells, 356 So.2d 817, 822 (Fla. 1st DCA 1978) (“[T]he court cannot accept [a guilty or nolo contendere] plea, thus binding the accused, and then reject the plea over the defendant’s objection, either as a matter of discretion or on some ground insufficient for the rejection- of a ... plea that has been accepted.”).

We therefore reverse Smalls’ judgments and sentences and remand for further proceedings consistent with this opinion.

KELLY and LaROSE, JJ„ Concur.

      . See, e.g., Fla. R. Crim. P. 3.170(f), (/).


text:
    Reginald Montre JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2252.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.

      Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Reginald Jackson appeals from his judgments and sentences for grand theft and criminal mischief. He argues that the trial court abused its discretion in summarily denying his motion for a reduction or modification of his sentences for grand theft without holding a hearing to allow Jackson to present evidence that his absence from the sentencing hearing was involuntary. We agree and reverse.

Jackson entered open guilty pleas to charges filed in two cases with the understanding that he would be placed on concurrent two-year terms of community control followed by two years of probation. The judge accepted Jackson’s guilty pleas and delayed sentencing on the condition that Jackson refrain from committing any new offenses and that he appear for sentencing at 8:30 a.m. on the designated day. Jackson was warned that if he failed to appear he could be sentenced to as much as ten years in prison. When Jackson did not appear at the scheduled time, the judge sentenced Jackson in his absence to two years in prison followed by three years of probation in each case. Within an hour of the sentences being imposed, Jackson called the judge’s chambers to report that he had failed to appear because of a medical emergency. Jackson also filed a motion for modification of sentence under Florida Rule of Criminal Procedure 3.800(c) and attached a document evidencing his presence at a hospital on the date of sentencing. The judge denied the motion without a hearing.

As Jackson argues on appeal, a defendant has a right to be present at all critical stages of his trial and cannot be sentenced in absentia for a felony unless he voluntarily waived his presence at the hearing. See Miller v. State, 833 So.2d 318, 319 (Fla. 2d DCA 2003); Singletary v. State, 870 So.2d 851, 852 (Fla. 3d DCA 2003). The burden is on the defendant, after his apprehension or appearance, to establish that his failure to appear was not voluntary. Wallen v. State, 932 So.2d 493, 493 (Fla. 4th DCA 2006).

Jackson attached documentation to his motion to modify or reduce sentence to support his allegation that his absence was not voluntary, but the judge summarily denied his motion without giving Jackson the opportunity to present his evidence. This was error. See Blair v. State, 25 So.3d 46, 48 (Fla. 5th DCA 2009) (holding that further proceedings were required for the trial court to determine whether the defendant’s absence was voluntary or involuntary); Zuluaga v. State, 793 So.2d 60, 61 (Fla. 4th DCA 2001) (remanding for a hearing to determine if the defendant’s absence was voluntary and for resentenc-ing if the court found that it was not).

Although Jackson’s telephone call to the judge’s chambers on the morning of sentencing may have been insufficient by itself to warrant a hearing regarding Jackson’s absence from court, the document from the hospital substantiated his claim and merited a hearing on the issue. See Blair, 25 So.3d at 48. Accordingly, we remand this case to the trial court for an evidentiary hearing to determine if Jackson’s absence from his sentencing hearing was voluntary or involuntary. If the trial court determines that Jackson’s absence was involuntary, Jackson must be resen-tenced.

Reversed and remanded for further proceedings.

ALTENBERND and LaROSE, JJ., Concur.

      . The State contends that an order denying a motion to reduce or modify sentence is not an appealable order, citing Spaulding v. State, 93 So.3d 473 (Fla. 2d DCA 2012), review denied, 114 So.3d 181 (Fla.2013), and argues that this court lacks jurisdiction to hear an appeal of that order. However, because Jackson filed a timely notice of appeal of his judgments and sentences after the court denied the motion to modify sentence, this court has jurisdiction to entertain an appeal of the judgments and sentences.


author: NORTHCUTT, Judge.

text:
    Wilburn THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-488.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.

      Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Wilburn Thomas pleaded no contest to possessing methamphetamine and drug paraphernalia and to resisting an officer without violence, reserving his right to appeal the denial of his dispositive motion to suppress evidence. We reverse because the evidence was obtained during an illegal traffic stop.

Late one evening, two Haines City police officers sitting in an unmarked vehicle noticed a car sitting with its parking lights on behind a business. The business was closed, but the gates in the fence surrounding it, which were usually shut, were not. The business owner had previously alerted the police that he had recently experienced several burglaries.

The officers observed people with flashlights walking between a dumpster and the bed of a pickup truck. After about ten minutes, the people turned their flashlights off and left the premises in the car. Both officers testified that they had not seen any criminal or illegal conduct. If they had observed such conduct, they said, they would have intervened. As it was, they simply sat in their vehicle and watched the goings-on from afar. When the people left, one of the officers radioed a patrol officer to stop the car in order to investigate the occupants’ activities behind the building and to determine whether they had stolen anything.

The patrol officer recounted that the officer who radioed told her that Thomas, a passenger in the car, was with someone involved in the drug trade and that another person in the car had been seen leaving a drug house. She testified that she did not witness a traffic infraction before conducting the stop. Although the patrol officer did not testify about how she discovered the contraband, her police report stated that Thomas was uncooperative when she asked him to step out of the car. She then attempted to arrest him, and he pulled away. In the process, Thomas’s shirt pulled up and the officer saw plastic baggies stuck in his trousérs. The baggies contained the drugs.

The question before us is whether the facts described by the officers were sufficient to establish that law enforcement had a well-founded, articulable, suspicion that criminal activity was afoot and thus could legally stop the car. We review this question of law de novo, State v. Hanker-son, 65 So.3d 502, 506 (Fla.2011).

The courts have consistently and repeatedly held that a person’s mere presence in an area known for past criminal activity or near a closed business during late-night hours does not provide the founded or reasonable suspicion necessary to stop a ear. L.N.D. v. State, 884 So.2d 515, 516 (Fla. 2d DCA 2004) (and numerous cases cited therein); see also Hill v. State, 51 So.3d 649 (Fla. 1st DCA 2011). Both officers who observed the people behind the business testified that they saw nothing criminal about their activities. The patrol officer stopped the car solely because one of the other officers asked her to do so — she did not see any traffic violations that would form an independent basis for a stop. Under these circumstances, the stop simply was not authorized by law.

The contraband items were discovered on Thomas’s person as a direct consequence of the illegal stop. Thus, their exclusion was mandated as fruits of the poisonous tree, no exception having been argued or supported by the evidence at the suppression hearing. See Moody v. State, 842 So.2d 754, 759 (Fla.2008) (noting three exceptions to the poisonous tree doctrine: (1) an independent source would have led to the evidence; (2) the evidence would have inevitably been discovered in a legitimate investigation; and (3) sufficient attenuation existed between the illegal conduct and the discovery of the evidence). Accordingly, we reverse the two possession offenses.

The obstruction without violence charge must also be reversed because the patrol officer did not have an objective basis for detaining Thomas. Therefore, she was not engaged in the lawful execution of a legal duty at the time of the charged obstruction, an essential element of that crime. See E.A.B. v. State, 964 So.2d 877 (Fla. 2d DCA 2007).

Reversed and remanded with directions to discharge Thomas.

ALTENBERND and LaROSE, JJ., Concur.


text:
    Jessie James HURRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3403.
    District Court of Appeal of Florida, First District.
    Aug. 11, 2014.
    Jessie James Hurry, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Baker v. State, 878 So.2d 1236 (Fla.2004).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


author: LEWIS, C.J.

text:
    A.H., Mother of K.H., A Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D14-656.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2014.

      Crystal McBee Frusciante, Office of Criminal Conflict and Civil Regional Counsel, Jupiter, for Appellant.
    Ward L. Metzger, Appellate Counsel, Jacksonville, for Appellee; Kelley Schaef-fer, Appellate Counsel, Sanford, for Guardian ad Litem Program.
   LEWIS, C.J.

A.H., the mother, appeals the termination of her parental rights over K.H., her son, and argues that the trial court erroneously found that she abandoned the child and that termination was the least restrictive means of protecting the child from harm. The Department of Children and Families (“DCF”) concedes that the trial court erred by finding that termination of the mother’s parental rights was the least restrictive means to protect the child from harm. We agree and reverse without addressing the trial court’s finding of abandonment.

In May 2011, DCF took the then two-year-old child into protective custody and placed him in foster care. In July 2011, the trial court adjudicated the child dependent. In April 2012, the trial court created a permanent guardianship, with the foster mother serving as the child’s permanent guardian, and terminated supervision by DCF. In September 2013, the mother filed a motion to reopen the dependency case, wherein she sought to regain custody of the child. At the hearing on the mother’s motion, DCF opposed the reopening of the case, the trial court inquired about the appropriateness of adoption, and the court granted the mother’s motion for the sole purpose of DCF filing a petition for termination of parental rights. DCF subsequently filed such petition on the grounds that the parents abandoned the child, the parents failed to complete the case plan, adoption was the least restrictive means to achieve permanency, and the termination was in the child’s manifest best interest.

At the termination hearing, an expert psychologist testified in detail about his pre-adoptive psychological evaluation of the child. The child was very comfortable with and trustful of the permanent guardian, had “uniformly positive” interactions with her, referred to her as his mom, and appeared to have a very strong bond with her. The child had memory of the mother and was aware of his older brothers, but “his greatest sense of contentment, predictability and stability in his life was with [the permanent guardian].” The psychologist was not sure whether the child’s return to the parents would threaten his safety. While the child’s return to the parents could interrupt his emotional health, the psychologist could not say that with certainty. Separation from the permanent guardian could frighten the child, could lead to the reoccurrence of his reactive attachment disorder, would cause things to go badly for him for a while, and would not lead to any foreseeable benefit. However, the child did not exhibit any negative feelings toward the mother and seemed to enjoy the prospect of visiting with her, and the psychologist did not see any reason why the child could not form a bond with her.

The permanent guardian testified that she is not related to the child, who has been living with her since May 2011. The child loves the mother and is happy to visit with her, but he never cries or asks to see her. The child calls the permanent guardian “mom.” The child is doing very well in school, does not have to see a therapist, and engages in extracurricular activities. The permanent guardian is willing to adopt the child because he is a part of her family and she “couldn’t love him any more.” During the supervised visits, the mother never behaved or spoke inappropriately with the child and there was no indication that she was a danger to him. The child never asks to see the mother, but has expressed a desire to see his siblings. The permanent guardian believes that the child would like to maintain a relationship with the mother and his siblings.

The child’s guardian ad litem (“GAL”) testified that the child is the top student in his class, is inquisitive and loving, and has a loving and caring relationship with the permanent guardian. The GAL wishes for the child to remain in the permanent guardian’s home. Although the parents are very remorseful about the case and love the child very much, they do not have the capacity to care for him to the extent that he would not be endangered if returned to them. That is so because even though the parents would not cause physical harm to the child, they are not “bonded to [the child] at all.... Emotionally and mentally it would be devastating to take him out of his home [with the permanent guardian].” The child is not able to express his wishes regarding adoption, “[b]ut he has stated that he would love to live with [the permanent guardian] until he is like 70 years old.” The child responds positively to the mother, but it is as if she were a distant family member. The GAL recommended termination of parental rights pursuant to the manifest best interest of the child so he could achieve permanency through adoption.

The trial court entered a final judgment terminating parental rights upon finding in relevant part that the parents engaged in the long-term abandonment of the child, it would be harmful to the child if he were removed from the permanent guardian’s care, there is little or no bond between the child and the parents, “termination of parental rights is the least restrictive means to achieve permanency for the child,” and termination is in the manifest best interest of the child. This appeal followed.

To terminate parental rights, DCF must prove by clear and convincing evidence: “ ‘(1) the existence of one of the statutory grounds set forth in Chapter 39; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm.’ ” A.H. v. Fla. Dep’t of Children & Family Sens., 85 So.3d 1213, 1215-16 (Fla. 1st DCA 2012) (internal citation omitted). “Where the trial court’s findings that the evidence is clear and convincing are supported by competent substantial evidence, and the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing, the finding will not be set aside on appellate review.” Id. at 1215.

Before a person may be deprived of the fundamental right to parent, DCF must prove that termination of parental rights is the least restrictive means of protecting the child from serious harm. G.H. v. Dep’t of Children & Families, 141 So.3d 984, 2014 WL 2927159 (Fla. 1st DCA June 30, 2014). That is, “ ‘the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child,’ and that ‘termination of parental rights is the least restrictive means of protecting the child from harm.’ ” B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1053 (Fla.2004) (internal citations omitted). If DCF “fails to prove that there is significant risk of harm to the current child, or that there are no measures short of termination that could be used to protect the child from harm, then termination will not pass constitutional muster.” J.B. v. Dep’t of Children & Families, 107 So.3d 1196, 1202 (Fla. 1st DCA 2013). “[T]he least restrictive means test [is not] intended to preserve the parental bonds at the cost of a child’s future. Instead, this test requires that ‘those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond.’ ” L.W. v. Dep’t of Children & Families, 71 So.3d 221, 224 (Fla. 4th DCA 2011); see also W.R. v. Dep’t of Children & Families, 928 So.2d 414, 419 (Fla. 1st DCA 2006) (same).

An order that creates a permanent guardianship is a type of permanency order that may be modified as set forth in Florida Rule of Juvenile Procedure 8.430. In re J.B., 130 So.3d 753, 757 (Fla. 2d DCA 2014) (citing section 39.6221(5), Florida Statutes, and explaining that the creation of a permanent guardianship requires the court to discontinue regular review hearings and relieves DCF of the responsibility to supervise the child’s placement). A permanency placement is intended to continue until the child reaches the age of majority and may not be disturbed absent a finding that the circumstances of the placement are no longer in the child’s best interest. Fla. R. Juv. P. 8.430 (2013). Upon a parent’s motion for reunification or increased contact with a child, the court must consider “the effect of the decision on the safety, well-being, and physical and emotional health of the child”; in doing so, the court must consider and address the parent’s compliance with the case plan, the circumstances causing the dependency and whether they have been resolved, the stability and length of the child’s placement, the child’s preference if the child is able to express one, the custodian’s recommendation, and the guardian ad litem’s recommendation. Id.) see also § 39.621(9)-(10), Fla. Stat. (2013).

In the present case, the record shows that the trial court has created a permanent guardianship for the child and there is no evidence that the mother’s irregular contact posed a harm to him. To the contrary, the evidence shows that the child has a strong bond with the permanent guardian and was doing very well in her care, yet he also enjoyed his visits with the mother and his siblings and wished to maintain a relationship with them. Given the circumstances of this case, DCF properly concedes that the trial court erred by finding that termination of the mother’s parental rights was the least restrictive means of protecting the child from harm.

Therefore, we REVERSE the termination of the mother’s parental rights.

BENTON and RAY, JJ., concur.

      . In her initial brief, the mother indicated that the father has passed away.


text:
    Warren KILPATRICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0723.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2014.

      Warren Kilpatrick, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Lynn Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Warren Kilpatrick, appeals the denial of his pro se Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief following an eviden-tiary hearing. He argues that his trial counsel was ineffective for failing to investigate and call a certain witness at trial. Finding the appellant’s arguments without merit, we affirm.

At the post-conviction hearing, the appellant’s trial counsel testified that he had interviewed the witness before trial and had determined that she intended to offer false testimony in order to help the appellant. Trial counsel testified that he was ethically prohibited from offering false testimony to the court. See Florida Rule of Professional Conduct 4 — 3.3(a)(4). Trial counsel also testified that he was advised by the witness’s own attorney that the witness would not be allowed to take the stand and perjure herself.

The trial court denied the appellant’s post-conviction motion, finding that trial counsel was not ineffective because the witness was not available to testify and, even if the witness had taken the stand and exercised her Fifth Amendment privilege, this would not have created a reasonable probability sufficient to undermine confidence in the outcome of the case.

We review the trial court’s factual findings for competent, substantial evidence and its legal conclusions de novo. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This Court will not substitute its judgment for that of the trial court on questions of fact, the credibility of witnesses, or the weight given to the evidence. See Blanco v. State, 702 So.2d 1250,1252 (Fla.1997).

The framework for analyzing claims of ineffective assistance of counsel was articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Here, the trial court properly denied the appellant’s post-conviction motion as he failed to meet the Strickland prongs. Trial counsel’s decision not to call the witness was proper. The witness was effectively unavailable for trial based on trial counsel’s reasonable belief that she would present perjured testimony. See Nelson v. State, 73 So.3d 77, 88 (Fla.2011) (stating that the unavailability of a witness will preclude a defendant from establishing deficient performance or prejudice).

AFFIRMED.

WOLF and ROWE, JJ., and PARKER, GREGORY S., Associate Judge, concur.